149 N.Y.S. 535 | N.Y. Sur. Ct. | 1914
This is an appeal by the executrix of decedent from an order fixing a tax'upon that part of the estate which consists of property located in this state. The decedent had his domicile in Rhode
It appears from the affidavit of an attorney of the state of Rhode Island that that state does not provide by statute for specific rates of compensation for executors, but that the court which judicially settles the accounts of executors and administrators may award to them such compensation as it deems reasonable. This is substantially similar to the provisions of. law in this state regulating the right of executors to commissions, except that the maximum amount which may be allowed by the surrogate is prescribed by statute in this state. As the commissions of an executor or administrator are properly deducted from the assets of an estate in order to ascertain its value for the purpose of the transfer tax (Matter of Westurn, 152 N. Y. 93, 46 N. E. 315; Matter of Gihon, 169 N. Y. 443, 62 N. E. 561), the amount allowed to the executrix by the probate court of Rhode Island as compensation for her services as such executrix should be deducted from the New York assets of the estate in the proportion which the net New York assets bear to the entire assets wherever situated (Matter of Porter, 67 Misc. Rep. 19, 124 N. Y. Supp. 676, affirmed 148 App. Div. 896, 132 N. Y. Supp. 1143). After making the necessary deduction for the compensation allowed to the executrix by the probate court of Rhode Island there is no property of the decedent in this state the transfer of which under the will of the decedent is subject to a transfer tax.
The order fixing tax will be reversed, and the estate of the decedent in this state declared exempt from the payment of a transfer tax. Set-, tie order on notice.