53 N.Y.S. 226 | N.Y. App. Div. | 1898
David W. Barnes, of the town of Hew Castle, died seized of a considerable estate, and left him surviving three brothers, next of
“ And deponent further says that a large part of the personal estate left by the said David W. Barnes was distributed among and paid over to the various parties entitled thereto on the eighth day of July, 1896, and that the remainder of the said personal estate is
The assessors, notwithstanding this affidavit, continued the assessment as originally made, and, on the administrators refusing to pay ■the tax, the supervisor of the town of Hew Oastle brings this proceeding to compel the payment of the tax. This court, at Special Term, after hearing argument, made an order directing the administrators to pay the tax which had been-levied and assessed against thém in their representative capacity, and from this order an appeal comes to this court'.
It is now urged, in addition to the claim made before the board of assessors of the town of' Hew Oastle, that the moneys on deposit in savings banks were exempt from taxation ; that, “ for the sake of convenience and expediency, and to relieve themselves from the cares of management, deponent (J. Wesley Barnes) and Richard P. Barnes, agreed with Noah T. Barnes that said Noah T. Barnes should have sole control and possession of the assets and estate of said David W. Barnes, and should take the. sole management of the estate property, deponent and Richard P. Barnes thereby ceasing to have any control or possession of the estate property or to participate in any way, except to .give advice, in the settlement of said estate; that, in pursuance of said agreement and prior to the first day of July, 1896, said Hoah T. Barnes actually took' and assumed the sole control and possession of the property of' the said David W. Barnes, deceased, depositing. the funds in banks in the name of Hoah T. Barnes, drawing checks in the name of Nnoah T. Barnes, receiving moneys and paying indebtedness and transacting all the. business of the estate in his own name, and by said agreement managing and controlling the entire estate to the exclusion of deponent and Richard Barnes, who participated in no part qf the control, possession or management of said estate property.
“Dejmnent further'says that on the said 1st day of July, 1896, he did not hold, nor has he since held- or controlled, any personal property, as administrator aforesaid, of any kind or nature.” An affidavit in the same language is made by Richard P. Barnes.
“ It must be regarded as a fair conclusion,” say the court in the "case of People ex rel. Campbell v. Commissioners of Taxes (38 Hun, 536), “ from the application of the relators, that the absent executors-failed only to have actual possession of the personal estate and that during their absence. There is no evidence of any transfer of it to any other place except what may he inferred from the circumstance that the foreign executor took possession. But this was a possession for the use of. the estate and its beneficiaries and in no sense deprived the other executors of that legal custody and possession resulting from their relation to it as executors and trustees. As said in Murray v. Blatchford (1 Wend, 616) by Chief Justice Savage : ‘ If a man appoints several executors they are esteemed in law but as one person representing the testator, and, therefore, the acts done by any one of them, which relate either to the delivery, gift, sale, payment, possession or release, of the testator’s goods, are deemed the acts of all, for they have a joint and entire authority.’
“It is contended, also, and. the contention is justifiable, that
“ In addition to this it must be said that the legal presumption is that the personal property of a decedent, during the settlement of the estate, is at the place where the decedent lived,- unless the contrary affirmatively appears. (Burrough on Taxation, p. 224; Desty on Taxation, § 68, p. 332.) Indeed, it is a natural presumption as well.”
That was a case in which two of the executors resided in this State, while the third was a resident of the State of Ohio. The two executors in this State, through ill-health or a pressure of business, were obliged to leave the State, leaving the property in the control of the foreign executor. In' the case at bar there was no relinquishment of the office of administrator •—no refusal to act — but a joint agreement under which one of the administrators undertook to discharge the duties of all of them, keeping the property within the' joint control of the three by means of an agreement bétween themselves, as to the manner in which the-estate should be managed.
In the case of. People ex rel. Caswell v. Commissioner of Taxes (17 Hun, 293) it appeared that the testator lived and died in Westchester county, and that his Will was admitted to probate there; that the personal property was located there; that four, of the executors resided in that county, and that the property was in their physical possession. The effort on the part of the tax commissioners of the city of Hew York to tax this personal estate in the hands of one of the executors who exercised no- active control over the property, was defeated. In the case at bar the assessors of the town in which the deceased lived and died have sought to levy a tax upon the proportion of the .estate represented by the local administrators, and .the facts do not warrant this court in deciding
This brings us to the consideration of the question whether the original representations of the appellant to the board of assessors of the town of Hew Castle were such as entitled him and his brother to have the assessment dropped from the rolls. It was contended that the personal estate of the deceased, being deposited in savings banks, was exempt from taxation, and this point is still urged upon the consideration of this court. We are unable to agree with this proposition. Section 3 of chapter 908 of the Laws of 1896 provides that “All real property within this state, and all personal property situated or owned within this state, is taxable unless exempt from taxation by law.” Subdivision 14 of section 4, which deals with exceptions, says : “ The deposits in any bank for savings which are dtie depositors, the accumulations in any domestic life insurance corporation, held for the exclusive benefit of the insured, other than real estate and stocks, now liable for taxation, and the accumulations of any incorporated co-operative loan association upon the shares of such association held by any person.”
Does this constitute an exemjfiion of the funds of individuals deposited in a savings bank ? If it does, then all that is necessary to escape taxation of money as jjersonal property is to deposit it in •a savings bank during the time that tíre assessors are at work, and when they have finished, withdraw it. Clearly this was never contemplated by the Legislature. The policy of the law is to reach and tax as much personal projrerty as possible, not to afford convenient hiding places for it during the time that the assessors are abroad, •and, in order that each community may have the benefits of the taxation arising from the personal property (including money) owned or controlled by the peojrle residing in the several tax districts, the aggregate dejDosits in savings banks which are due depositors, are ■exempted from taxation in the tax district in which such savings banks are located, and it is thus left to bear that portion of taxation which the local assessors may deem just and equitable as between the various members of the tax district.
“ There is,” say the court in the case of People ex rel. Savings Bank of New London v. Coleman (135 N. Y. 236), “ no language indicating that it was meant to exempt the depositors from taxation
In 'the case at bar there is no question of the amount of property involved. It is practically conceded that the deceased left an estate, the personal property of which was equal to the amount assessed against it by the assessors of the township in which deceased lived at the time of his death, and in which two of Ms administrators still reside.
We are of opinion that the assessors acted within the scope of their powers, and that the judgment of the court below, sustaining the action of the assessors of the town of New Castle, and directing judgment against the administrators, should be affirmed, with costs.
All concurred, except Bartlett, J., absent.
Order affirmed, with ten dollars costs and disbursements.