12 Mills Surr. 113 | N.Y. Sur. Ct. | 1914
This is an application by the executor of decedent’s estate to modify an order of this court which assessed a .transfer tax upon the estate, and to exempt from taxation the corpus of certain trust funds.
The decedent, who was a resident of New York, died on the 11th of June, 1903. Upon the petition of her executor an appraiser was designated by this court on the 9th of October,, 1903, to appraise her estate in accordance with the provisions of the Transfer Tax Law. Thereafter the executor filed with the appraiser an affidavit which contained, among other things,, a description of the property of which the decedent died seized and possessed. It also contained a description of certain property constituting the corpus of trust funds over which the decedent had a power of appointment, and the corpus of a trust fund of which the decedent was the cestui que trust, but over which she had no power of appointment. One of the trust estates was created by the will of Ann E. Hamilton, which was construed by a judgment of the Supreme Court of the state of New York, dated January 13, 1862. It was then adjudged that the decedent herein was entitled to the income' from the trust fund during her life and that the corpus should be paid to such person or persons as the decedent by her last will and testament should appoint, and, in default of appointment, that it should be paid to her issue per stirpes. This trust fund was appraised at $17,445.70. Another trust fund, which consisted of personal property valued at $15,190.30, was created by a deed executed on December 4, 1862, by the decedent herein to Charles F. Southmayd as trustee. The deed provided that the income from the fund should be paid to the decedent during her life and upon her death that the corpus should be paid to such persons as she" should appoint by her will and in the event, of her failure to make such appointment that the corpus should he paid to her issue per stirpes. The other trust estate, consisting of real and personal property valued at $74,038.35,
The executer contended before the appraiser that these trust funds were not subject to taxation under the provisions of the Transfer Tax Law. The appraiser, however, reported that the property constituting the corpus of the various trust funds was subject to a transfer tax. An order assessing a tax upon the decedent’s estate in accordance with the finding of the appraiser was made by this court on the 16th of March, 1908. No appeal was taken from the order. The decedent owned certain property in her own right and the tax assessed upon this property was paid to the state comptroller, but the tax assessed upon the various trust funds has not been paid.
The executor’s affidavit, which was filed with the appraiser and which contained a description of her individual property as well as that constituting the corpus of the trust funds, was made on the 23d of May, 1907. At that time it had not been decided by the appellate courts of this state that when the instrument conferring a power of appointment gave to the donee the power to appoint and then provided for other disposition of the property in the event of the failure of the donee to make such appointment, the exercise of the power in favor of the same parties who would take in the event of the failure of the donee to make the appointment rendered the transfer exempt from taxation. This court, in Matter of Haggerty, N. Y. L. J., April 18, 1908, and Matter of Lewis, Id., June 27, 1908, decided that the property transferred under those circumstances was subject to a tax. These cases, however, were reversed by the Appellate Division in November, 1908 (Matter of Haggerty, 128 App. Div. 479; Matter of Lewis, 129 App. Div. 905), and the Court of Appeals in January, 1909, affirmed the orders of the Appellate Division. As the affidavit of the
As the decedent had her domicile in the state of New York and died a resident of New York county, the surrogate had jurisdiction to designate an appraiser to appraise her estate and to assess a tax upon the transfer of her property. The Tax Law in force at the date of decedent’s death provided that when a person exercised a power of appointment derived from any disposition of property, “ such appointment when made shall be deemed a transfer, taxable under the provisions of this act in the same manner as if the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will.” If the decedent exercised the power of appointment over the property constituting the corpus of the various trust funds, such exercise of the power of appointment would be taxable in the same manner as if the property belonged absolutely to her. She did exercise the power, and it has not yet been judicially determined that the property constituting the corpus
In Matter of Backhouse, 110 App. Div. 737, the facts are almost similar to those in the matter under consideration, but it does not appear from the record of that case that the question as to whether the property passed by virtue of the exercise of the power of appointment was presented to the appraiser for determination. This important point distinguishes Matter of Backhouse from the matter now before me.
The trust fund over which the decedent did not have the power of appointment, but which passed to her issue by virtue of the provisions of the deed of trust executed on the 16th of February, 1860, did not constitute any part of her estate and should not have been included therein. No question of law in regard to the transfer of this property was presented to the appraiser for determination. The inclusion of this trust fund in the taxable assets of decedent’s estate was a mistake of fact which could be corrected by the surrogate, although no appeal had been taken from the order and the time to appeal had expired. The surrogate has the power under subdivision 6 of section 2481 of the Code to correct such a mistake, although more than two years have elapsed since the entry of the order. Matter of Henderson, 157 N. Y. 423. But the circumstances of this case do not seem to warrant the exercise of the surrogate’s discretion in favor of the petitioner. The order fixing tax was entered on the 16th of March, 1908, and notice of the assessment was mailed to the legatee on the 5th of April, 1908.
Application for a modification of the order fixing tax denied.
Application denied.