123 N.Y.S. 284 | N.Y. Sur. Ct. | 1910
The decedent died, intestate, January 20, 1908, and letters of administration upon his estate were issued to Elzer and Melzer Bushnell, cousins of the decedent, February '5th following. The administrators made application for an assessment of the estate and determination of the tax to which the estate was liable tinder the provisions of the Taxable Transfer Act. Such appraisal, made by the surrogate, resulted in an or
The facts upon which the comptroller’s objections were based and necessary to be considered upon this appeal are briefly as follows:
•Shortly after the issuing of the letters of administration to the Bushnells, a petition was filed by -one -Carrie M. Douglas, asking for a revocation of the letters so- issued, and for her own appointment -as -administratrix, alleging in such petition that she was a sister of the decedent and hi-s sole heir at law and next of kin, and that the Bushnells. had no interest in the estate and were not entitled to administer thereon. This claim was strenuously controverted by the administrators, -and the issue thereby raised came on for trial before the iS-urrogate’s Court; and, after the completion of -all the proofs in -the case, which were voluminous, the hearing .occupying many days, all the parties interested-in the estate entered into .a stipulation giving the petitioner,. Douglas, a certain portion of the estate as her full share and fixing the compensation of the various- attorneys who had appeared for the respective parties as follows: To Harry E. Lewis, attorney for petitioner, $1,100; G. W. Cole, who .appeared for certain of the heirs, $106; I. 27. White, appearing for other heirs, $200; T. H. Do-wd, who appeared for the administrators, for services and expenses, $1,800; -stenographer’s fees and expenses, $75.
After the determination o-f this -controversy, an equity action was begun against the -administrators and all the heirs at law and next of kin of the decedent by one Frank A. Raymond, alleging that prior to the decedent’s death he had entered into a contract with him to the effect that he, Raymond, should support and maintain-the decedent and his mother during their respective lives -and pay their funeral expenses, and as compensation therefor should have all the estate, real and personal, of which decedent died possessed; -and further alleging that he had fully performed such contract on his part, and demanding judgment that his rights be -accordingly established, and that the administrators be required to deliver to- him the personal estate and the heirs directed to convey to- him the real estate of which the decedent died possessed. Answers were interposed in this action on behalf of the administrators -and on behalf of the various heirs at law. The action was duly referred and. tried before -a referee, who reported in favor of the defendants. From the judgment entered upon such report, the plaintiff appealed to- the Appellate Division of the Supreme Oburt, where the judgment was affirmed. The estimated costs and expenses of this litigation over and above the amount recovered from the defendants was $2,500-. It is now claimed on behalf of the comptroller that no portion of the expense of the Douglas litigation should have been deducted before .assessing the tax, and that the $2,500— estimated expenses of the Raymond litigation — is excessive, and that no greater amount than $1,500 should have been deducted therefor.
iConsidering the claim of the appellant that the item of $3,-732.50—- expenses of the Douglas contest — should not have
“ 1. "When the transfer is by will or by the intestate laws of this State from any person died seized or possessed of the property while a resident of the iState.”
Upon the death of the decedent, intestate, his estate passed, by operation of law, to his heirs and next of kin, subject, however, to the payment of his legal debts, reasonable funeral charges and legitimate expenses of administration. Such charges diminish the actual value of the estate passing to those entitled. Aside from such deductions, the right of 'the State to collect the tax in accordance with the statutory rates and provisions attaches to the total value of the estate; the rights of the State and of the distributees become fixed and established at the same instant and immediately upon the death of the intestate. If a controversy subsequently arises as to the relative rights of distributees, involving expense and litigation, the rights of the State cannot be prejudiced or impaired thereby. It is still entitled to the tax upon the full amount passing originally under the intestate laws. "While such a controversy may diminish the individual distributive shares, the misfortune is that of the individual, and in that regard is the same as any other necessary expenditure in protecting one’s property rights. Any other rule would permit litigating claimants to consume an entire estate with costs and disbursements, entirely defeating the claim of the State. This item should not have been deducted before assessing the tax, this conclusion being entirely in harmony with the result reached in Matter of Westurn, 152 N. Y. .93-102; nor is such conclusion in conflict with the decision in Matter of Gihon,
A decree will be accordingly entered, modifying the former assessment of the tax under the Transfer Act by providing that the further sum of $13,732.-50 is liable to- tax at the rate of five per cent.
Decreed accordingly.