44 A.D. 340 | N.Y. App. Div. | 1899
The respondent is the residuary legatee under the will of Zefita, Countess He Rohan Chabot, who died on the 29th of February, 1896,. being at that time a non-resident of this State, but of Paris, France. The surrogate of New York county made an order appointing an appraiser to ascertain her estate for the purpose of assessing the amount of the transfer tax. Upon the appraisal then made a transfer tax was assessed, not only upon certain real .property of which she died seized in the city.of New York, but upon a very considerable amount of personal property of which she was said to be the owner. The personal property upon which the transfer tax was assessed consisted of bonds of various corporations and stock of New York corporations, actually situated within the State of New York. In addition to those securities there were stocks of corporations which "were not within the State of New York, but those stocks were not attempted to be assessed, and no question is raised here concerning them. From the order of the surrogate assessing the personal property an appeal was taken, and the surrogate upon the appeal modified his first order by striking out the entire assessment against the personal property and leaving the transfer tax only upon the real estate. From that order this appeal is taken by the comptroller.
The facts are that in 1873 Henry Heyward, the father of this decedent, by his will bequeathed a certain portion of his property to his wife Zefa for her life, and upon her decease or remarriage he bequeathed the said property to his son Frank and to his daughter Zefita, or po the survivor of them. By the same will the remainder to the children was subject to the power given to Mrs. Heyward to appoint by her last will and testament that share or any part thereof to such of the testator’s lineal descendants, and in such proportions,
It is insisted by the learned counsel for the comptroller that alj the personal property.which passed to the Countess Zefita after the death of her mother, except the stocks of the foreign corporations-above referred to, was liable to a transfer tax before it could be paicP over to her legatees, and the question presented is, whether this contention is correct; The personal property which might be liable to-the tax is easily divisible into three groups. In the first place, there-is the: property which Mrs. Pley ward took by bequest from hem son Frank, of which she had a life estate, and the remainder in which went at her death to the Countess Zefita. As to this property there can be no question that the Countess Zefita was entitled to it immediately upon the death of her mother, and that Mrs. Heyward’s' executor never had any title to it, so that the Countess Zefita was the actual owner of this property immediately upon the death of' Mrs. Pleyward, and required no process of administration upon the-estate of Mrs. Pleyward to entitle her to possess it. ' This property belonged to. her at the time of her death, and it was, undoubtedly,, subject to the transfer tax, within The Matter of Whiting (150 N. Y. 27).
Another portion of the property against which it is claimed that - the tax should be assessed was that of which Mrs. Heyward had an estate for life under .the will of her husband, with- a remainder- to-the Countess Zefita, and with a power of appointment to Mrs. Hey-ward of that property. By Mrs.. Pley ward’s will that power of appointment was executed to the Countess Zefita. In that .property, also, Mrs. Heyward had only a life estate. It never went to her
It is very probable that the appointment could not take actual effect until the will of Mrs. Heyward had been admitted to probate; but none the less the title of the Countess Zefita, arising as it did from the death of the testatrix, and relating back to the time of the death of her father, actually vested the estate in her at the time when her mother died. For this reason this portion of the personal estate also actually belonged to the Countess Zefita at the time of her death, and was subject to the transfer tax.
But there is a considerable amount of personal property which was actually owned by Mrs. Heyward in her own right at the time of her death. By her will Mrs. Heyward bequeathed to her daughter, the Countess Zefita, absolutely all this property. The securities of which the property was composed were within the State of Hew York. It is claimed by the Comptroller that this property actually passed to the Countess Zefita at the death of Mrs. Heyward, and, therefore, it wa? liable to the transfer tax as her property. Mrs. Heyward died, as has been stated, in 1895. After a contest her will was admitted to ¡probate on the 29th of February, 1896 — the very day of the death of her legatee, the Countess Zefita. 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. Hey-ward’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 execu tor of the Countess Zefita, but the single question is whether this property which is in the hands of the executor of Mrs. Heyward and is not yet administered upon, and has not been paid over to the Countess Zefita, is now to be subject to a transfer tax against
The conclusion, therefore, is, that so much of the personal property included in the appraisal as represented the securities which the executor of Mrs. Heyward held, but which upon the final administration of that estate would have been paid over as the legacy made by Mrs. Heyward to the Countess Zefita, is not now taxable under the collateral inheritance tax, and this jDortion of the modified order of the surrogate is, therefore, affirmed. The order of the surrogate must, therefore, be modified by levying the tax upon so much of the personal property mentioned in the appraisal as passed to the Countess Zefi.ta by virtue of the bequest in remainder of her brother Frank Heyward, and so much of the" personal estate of which Mrs. Heyward had a life estate under the will of her husband, and which passed by her appointment to the Countess Zefita, and as thus modified must be affirmed, without costs in this court to either party.
Yah Brunt, P: J., Barrett and McLaughlin, JJ., concurred.
' I concur with Mr. Justice Rumsey that the property which came to the deceased from her father and her brother subject to the life estate of her mother was subject to taxation, but I cannot agree with his disposition of the question' as to the liability of the personal property which was actually owned by Mrs. Heyward in her own right at the time of her death. This property belonged to Mrs. Heyward and was by her last will and testament devised
The decision of the Supreme Court in Matter of Phipps (77 Hun, 326) must be. read in' connection with the decision of the Court of Appeals in Mattter of Houdayer (150 N. Y. 38), and the principle established by this .latter decision must, I think,
Order modified as directed in opinion, and as modified affirmed, without costs in this court to either party.