114 Misc. 86 | N.Y. Sur. Ct. | 1921
On this appeal the question arises as to' the construction of section 220, subdivision 3, of the Tax Law. The decedent, a non-resident, left a net taxable estate in New York, fixed by the appraiser in his report at $363,271.60, In prorating the various amounts taxable on the transfers, the appraiser adopted the ratio between the property in New York and the. entire personal estate, wherever situated. The executors claim that the proper basis for computing this ratio is the total amount of real and personal property transferred. The subdivision provides as follows: “ Whenever the property of a resident decedent or the property of a non-resident decedent within this state, transferred by will, is not specifically bequeathed or devised, such property shall, for the purposes of this article, be deemed to be transferred proportionately to and divided pro rata among all the general legatees and devisees named in said decedent’s- will, including all transfers under a residuary clause of such will.” This amendment was adopted to prevent the abuse, which existed before its enactment, by reason of executors arbitrarily choosing to pay certain legacies exempt by our law out of the New York assets. The purpose of the legislature was to provide for an equitable marshalling of the assets and
The appraiser erred, therefore, in not including the real estate in his computations. The matter is remitted to him for the purpose of taking proof as to the total value of all the general legacies and the residuary legacies transferred under the will. Incidental to
Appeal sustained.