155 N.Y.S. 185 | N.Y. Sur. Ct. | 1915
The decedent, who died October 22, 1913, by her will gave her entire residuary estate to ten charitable corporations, each of which, from the nature of its work and the
On this state of facts the transfer tax appraiser found in his report that the transfer of the residuary estate was exempt from taxation under the Transfer Tax Act. The state comptroller now appeals from this report of the appraiser and from the order entered thereon upon the grounds, first, “ that the appraiser erred and made a distribution of the estate that does not accord with the law in that it is in contravention of the terms of sections 17 to 20, inclusive, of the Decedent Estate Law of the State of Hew York,” and, second, and in “ that the order entered as above fixes and assesses an inadequate and insufficient tax on the transfers of the property of said decedent.”
As to the first ground of appeal, let us observe that sections 18, 19 and 20 of the Decedent Estate Law were repealed by chapter 857 of the Laws of 1911, in effect July 29, 1911. Section 17, the only one of said sections remaining unrepealed, relates to instances where the decedent leaves a husband, a child or a parent him surviving. In the event of such survivorship the benefaction to any charitable corporation would be limited to one-half of decedent’s estate. The decedent here did not, however, leave surviving a husband, a child or a parent, so the appeal on this ground must fail.
The respondent urged upon the argument of the appeal that
An examination of the compromise agreement shows that paragraph fifth thereof provides in substance that the residuary legatees authorize the person who may become executor or have charge of the administration of the estate to divide the residuary estate into three equal parts and to make the distribution in the manner above referred to, i. e., two-thirds to the residuary legatees named in the will and the other third to the decedent’s next of kin, such distribution to be in full satisfaction of the legacies coming to said residuary legatees. “ The amounts of such payments to the next of kin were thereby released and assigned by said corporate legatees to said next of kin respectively out of the respective legacies of the said corporate legatees.” In the two cases cited by the appellant in support of his contention (Matter of Wolfe, 89 App. Div. 349, affd., 179 N. Y. 599, and Matter of Merritt, 155 App. Div. 228), the facts were not the same. In each of those decisions it appears that renunciations of legacies, wholly or in part, were obtained, whereas in this case at bar no renunciation whatever was given. To quote the language of the compromise agreement before referred to, the residuary legatees “ released and assigned ” to the next of kin the share paid in settlement. Consequently I venture to think that the rule laid down in Matter of Cook (187 N. Y. 253), which case is very similar in some respects to the one under discussion, is controlling in the disposition of this ground of appeal. In Matter of Cook the decedent died, leaving a widow, an adopted daughter, a child of said adopted daughter, whom the testator describes as his grandson, and several nephews and nieces. By his will he created a fund of $50,000 for the benefit of said grandson, with remainder over to
Appeal dismissed and order affirmed.