144 N.Y.S. 1099 | N.Y. Sur. Ct. | 1913
The decedent, who was a resident of New York county, died intestate on the 30th of March, 1912. An appraiser was duly designated to appraise her estate for the purpose of the transfer tax, and from the order entered upon his report this appeal is taken by the administrator. Mary Ann Simpson, the mother of the decedent, married Charles Simpson. The latter had been married previously and had one daughter, Emma S. Orr. The children born of the marriage of Charles Simpson and Mary Ann Simpson were Charles, Miriam, Silas Francis, Amanda E., and Mary Loretta. Charles Simpson, the father, and Charles Simpson, the son, died prior to the death of Mary Ann Simpson. The latter died on March 12, 1902, leaving, a will by which she devised to her three daughters, Miriam, Amanda E., and Mary Loretta, the premises known as No. 218 West Fiftieth street and No. 276 West Seventy-Third street, in the city of New York. She further directed that the rents from these houses should be paid to her daughters Amanda E. and Mary Loretta during their lives and the life of the survivor. She gave to her executrix power to sell and convey any of1 the real estate of which she died seised. Mary Ann Simpson also died seised of the premises Nos. 581-583 Eighth avenue, and she devised one-fifth or said premises to each of her children. Silas Francis Simpson, one of the children, died on the 29th day of March, 1908, intestate. Mary Loretta Simpson duly qualified as executrix under the will of her mother, and thereafter, by virtue of the power
The questions presented by this appeal are: First, whether, upon the death of Silas Francis Simpson, intestate, his half-sister, Emma S. Orr, inherited equally with his full brother and sisters the interest in the premises Nos. 581-583 Eighth avenue devised to him by his mother, Mary Ann Simpson; second, whether, in the event of Emma S. Orr being excluded from participation in the one-fifth interest of which Silas Francis Simpson died seised, she became entitled, upon the death of the decedent herein, to a share of the interest in the premises at Nos. 581-583 Eighth avenue which the decedent inherited from Silas Francis Simpson; third, whether, upon the death of the decedent herein, her interest in the proceeds of the sale of premises No. 218 West Fiftieth street and No. 276 West Seventy-Third street was real estate or personal property.
Section 90 of the Decedent Estate Law (Consol. Laws 1909, c. 13) provides that:
“Relatives of the half blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who were not of the blood of such ancestor shall be excluded from such inheritance.”
The order fixing tax will be reversed, and the appraiser’s report remitted to him for correction, as herein indicated.