1 Pow. Surr. 586 | N.Y. Sur. Ct. | 1894
—The appraiser was entirely right in declining to hear evidence in regard to the debts of the deceased, the funeral expenses, and expenses of administration. The Court of Appeals held in Re Swift, 137 N. Y. 77-87, 50 St. Rep. 81, which arose under the act of 1887, that “manifestly, under the law", that which is to be reported by the appraiser for the purpose of the tax is the value of the interest passing to the legatee under the will, without any deduction for any purpose.” This supports the view taken on the subject by this court in Be Ludlow, 4 Misc. Rep. 594, under the act of 1892. The two actions on this point are substantially alike. This court, however, is asked to deduct the tax on the sum of the debts, funeral expenses, commissions of the executors, and the expenses, aggregating about $26,700, exclusive of commissions, which were not estimated, but inclusive of a claim of a physician for $2,629, now alleged to be in dispute, and also the sum of $2,500 as the estimated expenses of administration. The amount in value of the estate or property to be taxed should be fixed with mathematical certainty, and not by mere estimate or approximation. This is easily done at once on general and specific legacies, but on those embraced in a residuary clause such amount subject to the tax, if any, cannot be fixed until the accounting shall have been had, if we are allowed to deduct for debts, funeral expenses, and expenses of administration, for the physician’s bill is stated to be in dispute; and hence, how much it may be reduced or affected by the result, and the cost of litigation, if any, or how it may affect the estimated expenses of administration, cannot now be known. Whether any deduction, such as is sought here, can even then be made, is involved in such doubt,. The value of the properly or estate to be appraised is defined by the twenty-
But there is another ground, not stated in the notice of appeal, which renders the appraisal and fixing of the tax at present impossible. AYhere an estate for life is given, with remainder over, it is an easy matter for the superintendent of insurance to fix the value of the life estate. But here the widow is given the use of the whole for life, and, in case of her remarriage, then the use of one-half only. AYhile we have an established method for ascertaining the value of a life estate of a widow, based upon an arbitrary rule as to probable time of death, there is lacking any such rule to enable us to approximate the period when, if at all, she may remarry. That defies all calculations. Hence the value of her estate, or of the remainder, cannot now he ascertained for the purpose of the assessment of the tax. That cannot he done until her death or marriage. The decree is therefore set aside and vacated.