34 Misc. 432 | N.Y. Sur. Ct. | 1901
The comptroller of the city of Hew York appeals from an order made on the report of an appraiser fixing, assessing, and determining the transfer' tax upon the estate of William E. Howell. The grounds of the appeal are that the report of the appraiser and the order of the surrogate failed to impose a tax upon the remainder interests in the trust fund created by and passing un
“All the rest, residue, and remainder of my property, both real and personal, of every name, nature, and description whatsoever, and wheresoever situated, I give, devise, and .bequeath to the executors hereinafter named, in trust, however, for the uses and purposes following: First, to apply the rent, profits, and income thereof to the use of my said wife during her lifetime. Second. Upon the death of my said wife, to divide the said trust fund into as many shares as I may then have children me surviving, and to_ apply the rent, profits, and income of each share, and so much of the principal thereof as to my said trustees may seem advisable, to the use of the child for whom the same was set apart during the lifetime of such child, and upon the death of any such child to convey, transfer, and pay over so much of the principal of his share as may then remain, in such manner as may be designated by his last will and testament, or, if he should make no such designation, then to his issue, if any, and, if there be no such issue, then to the survivors or survivor of my children.”
A widow and four cMldren survived the testator, and the report of the appraiser fixes, and the order made thereon imposes, a tax on the estate of each of them, the correctness of which is not drawn in question. It is, however, found by the appraiser that, after deducting from the principal of the testator’s estate the values of the life interests of the widow and children, there are remainder interests of the value of $40,803, which he did not tax, for the reason, as stated in his report, “I am unable to report the names of the person or persons who will ultimately be entitled to the remainder interests as above set forth.”
The decedent died on the 1,9th day of July, 1899, and this proceeding is governed by the transfer tax law, as amended in March, 1899. Laws 1899, c. 76. The amending statute provides, among other things, as follows:
“When property Is transferred in trust or otherwise, and the rights, interest or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed on said transfer at the highest rate which, on the happening of any of the said contingencies or conditions? would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith, by the executors or trustees, out of the property transferred: provided, however, that on the happening of any contingency whereby the said property, or any part thereof, is transferred to a person or corporation exempt from taxation under the provisions of this article, or to a person taxable at a rate less than the rate imposed and paid, such person or corporation shall be entitled to a return of so much of the tax imposed and paid as is the difference between the amount paid and the amount which such person or corporation should pay under the provisions of this article, with legal interest thereon from the time of payment.”
It will be observed that the amendment does not assume to put any tax on the property of a decedent as such, and that, it adheres to the general policy of the legislation in this state on this subject,—to impose a tax upon the transfer. Neither does it change the rule which requires an appraisal of each interest transferred, and the fixing of the tax upon each interest, and the collection of the tax “out of the property transferred.” The appraiser was unable to determine how many persons might, under the terms of the will of the testator, at
Report of appraiser and order affirmed.