18 Mills Surr. 271 | N.Y. Sur. Ct. | 1916
The executor has appealed from the order assessing a tax upon the estate of the decedent and contends that the appraiser erred in reporting that decedent’s interest in the premises Eo. 56 Prince street, in the borough of Manhattan, city of Eew York, should be divided equally between her three sons. In the third article of her will the decedent devised to her three sons, Julian, George and Charles, all her real estate situated in the state of Eew York or elsewhere in the United States, and directed that if any of the real estate owned by her e at the date of the execution of her will was sold prior to her death the proceeds should be regarded as real estate for purposes of disposition under her will. In article 6 of her will she bequeathed all of her personalty in the United States to her two sons, George and Charles, but it was expressly stated in that article that such bequest did not include the proceeds of any of the real estate owned by her at the date of the execution of her will, but sold prior to her death. There is nothing in this article of the will which limits the general devise contained in article 3. The decedent does not direct that any real estate purchased by her after the execution of her will should be regarded as personalty for the purpose of limiting its disposition to persons to whom she bequeathed her personal property. As she devised her real estate equally to her three sons, and as she was seized of an interest in the premises Eo. 56 Prince street, in the borough of Manhattan, city of Eew York, at the time of her death, the appraiser was correct in dividing this interest equally between the decedent’s three sons:
The executor also contends that the appraiser erred in failing to deduct $12,140.81 from the value of the real estate devised to decedent’s son Julian McCarthy Steele. The papers attached to the appraiser’s report show that the decedent, some years prior to her death, entered into a marriage contract on •behalf of her son Julian, by which she agreed to pay to the trus
The executor also contends that the appraiser erred in refusing to deduct $5,000 administration expenses from decedent’s real estate in this state. The decedent was a non-resident. At the time of her death she was seized of certain real estate in this state. She was also the owner of certain personal property located in this state, the amount of which is not stated in the affidavit of the executor; but from a stipulation filed by the executor and the attorney for the state comptroller it appears that the value of the personal property in this state exceeded $60,000. As there wras sufficient personal property to pay the administration expenses they should be deducted in toto from the personal property. It is only wdien the personal property is insufficient to pay the administration expenses that recourse
The executor also contends that the appraiser erred in failing to deduct from the value of the real estate the sum of $4,-2-56, taxes assessed upon the personal property of the decedent prior to her death. The personal property which the decedent owned in this state at the time of her death is not subject to a transfer tax in this state. Any taxes assessed by the state or municipality on such personalty constitutes an indebtedness which is payable out of the'personalty.
The executor also-contends that the appraiser erred in refusing to deduct executor’s commissions upon the real estate. The decedent devised her real estate in this state to her children. She also gave to her executor a power of sale. The power was not exercised at the time this proceeding was before the appraiser, and it may never be necessary for the executor' to exercise it. Until such power of sale is actually exercised no commissions for the sale of such real estate can be allowed to the executors in a transfer tax proceeding. (Matter of Browning, 95 Misc. Rep. 459.)
The order fixing tax will be modified by making the taxable interest of Julian McCarthy Steele $57,397.35.
Order modified.