| N.Y. App. Div. | May 21, 1951
Appeal by the State Tax Commission from an order of the Surrogate’s Court of the County of Nassau modifying the report of an appraiser by increasing the amount of exemption of the property of the estate from tax and exempting the estate from taxation under section 249-q of the Tax Law. Order reversed on the law, without costs, and the pro forma taxing order of March 21, 1950, reinstated, without costs. Power granted to a life tenant to invade the corpus as necessary for her support does not enlarge her interest from that of a life estate to one in fee. (Matter of Stevens, 241 A.D. 490" date_filed="1934-05-18" court="N.Y. App. Div." case_name="In re Stevens">241 App. Div. 490; Matter of Ithaca Trust Co., 220 N. T. 437; Matter of Sievert, 246 A.D. 457" date_filed="1935-12-23" court="N.Y. App. Div." case_name="In re the Construction of the Last Will & Testament of Sievert">246 App. Div. 457; Hasbrouck v. Knoblauch, 130 A.D. 378" date_filed="1909-02-05" court="N.Y. App. Div." case_name="Hasbrouck v. Knoblauch">130 App. Div. 378.) Section 153 of the Real Property Law does not have that effect. (Hasbrouck v. Knoblauch, supra.) Accordingly, the interest of the testator’s widow, as such life tenant, in the corpus was not “ indefeasibly vested ” within the meaning of subdivision a of section 249-q of the Tax Law, and the exemption afforded by that statute is not applicable. (See Matter of Benson, 275 App. Div. 226; ef. Matter of Walsh, 277 App. Div. 1133.) Nolan, P. J., Johnston, Adel, Sneed and Wenzel, JJ., concur. [197 Mise. 726.]