90 N.Y.S. 923 | N.Y. App. Div. | 1904
This is a transfer tax proceeding, and the facts, so far as material, are as follows: On the 12th day of April, 1899, Robert T. Clinch died at Paris, France, being then a resident of that city; he left a last will and testament, which, on the 23d of February, 1900, was admitted to probate by the Surrogate’s Court of the county of New York, and letters testamentary were, on the thirtieth of April following, issued to the executor therein named; all the property which he owned or in which he had any interest in the State of New York at the time of his death was such as came to him under the will of his father, Charles J. Clinch, who died on the 22d of July, 1898, at Paris — he also at the time of his death being a resident of that city; the father’s will was admitted to probate in the Surrogate’s Court of
The appellant does not claim but that a transfer of property, of the class or kind here transferred, is taxable under the Tax Law, even though held by a non-resident at the time of his death, and such claim could not well be made in view of the decisions bearing on that subject. (Matter of Bronson, 150 N. Y. 1; Matter of Whiting, Id. 27; Matter of Morgan, Id. 35; Matter of Houdayer, Id. 37.) What is claimed is this, that inasmuch as the interest which Robert had in his father’s estate had not been definitely determined, and the property reduced to possession, prior to Robert’s death, a transfer thereof by his will is not liable to a tax under the statute. In support of this claim our attention is called to Matter of Phipps (77 Hun, 325; S. C. affd., 143 N. Y. 641), and Matter of Chabot (44 App. Div. 340; affd., sub nom. Matter of Zefita, Countess De Rohan-Chabot, 167 N. Y. 280). An examination of these authorities, however, does not, as it seems to us, sustain the appellant’s contention. In Matter of Phipps (supra) the facts are not analogous to those here involved. There one Elizabeth Fogg, a resident of the State of New York, made a will in which she gave her residuary estate, consisting of real and personal property, to Hiram Fogg, of Bangor, Me., and John A. Phipps, of Boston, Mass. Phipps died in Boston, before the estate of Elizabeth Fogg had been administered, leaving a will in which his interest in the estate passed to his wife. The question presented was whether the interest so transferred in the State of Massachusetts was taxable in the State of New York. The court held, it was not,
The Zefita case does not aid the appellant. There, Mrs. Hey-ward, a resident of Paris, bequeathed certain personal property in Hew York to her daughter, the Countess Zefita. The day the will of Mrs. Heyward was probated the countess died. When the consideration of the transfer tax came before the Appellate Division it declined to pass upon the question as to whether the property would be taxable when the mother’s estate had been administered and the right to the property bequeathed had been determined. Mr. Justice Rumsey, delivering the opinion of the court, said: “ The question presented is not whether this property is subject to a transfer tax in the hands of the executor of Mrs. Heyward, but whether the right of the Countess Zefita to have it paid over to her by the executor of Mrs. Heyward, after it should have been administered upon, was such property as authorized the surrogate to levy a transfer tax upon it before it could be paid to the legatee of the Countess Zefita. It must not be forgotten that no question arises here as to the liability of this property for taxation before it can be paid to the legatee of Mrs. Heyward. It is still in the hands of Mrs. Heyward's executor, and her estate has not yet been administered upon and no question is presented here as to whether it may be liable for taxation before Mrs. Heyward’s executor can transfer it to the executor of the Countess Zefita, but the single question is whether this property which is in the hands of the executor of Mrs. Heyward
Here, before the tax was imposed, the father’s estate had actually been settled and the property which passed under his will to the son had been delivered to the son’s executors. This would seem to bring the case directly within the statute making such transfer liable to a tax. The statute provides that “ when any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property, or the income thereof by any such transfer,” the transfer shall be taxable. (Tax Law [Laws of 1896, chap. 908], § 220, subd. 4, as amd. by Laws of 1897, chap. 284.) Of course, until there had been a settlement of the father’s estate, it could not be definitely known there would be any transfer to tax, and until a distribution had been made nothing had been transferred and for that reason no tax could be imposed. Up to that time there was a mere claim on the part of Robert or his executors against his father’s executors, for a share or interest in his estate which passed by his will. Such claim was, at most, a mere chose in action, which followed the residence of the claimant and, as indicated, it would be
The order of the surrogate appealed from, imposing a tax upon the transfer of the property in question, must, therefore, be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Laugbxin, JJ., concurred.
Order affirmed, with costs.