In re the Estate of Underhill

20 N.Y.S. 134 | N.Y. Sur. Ct. | 1890

The Surrogate.

There were three executors named in the will, all of whom qualified. To each of those who should qualify and act the testator bequeathed five hundred dollars, over and above his legal commissions and expenses, one half of which sum was made payable one year after he should have qualified as such, and the other half on the final accounting, which could not, by reason of the provisions of the will, occur in less than seven years. Section three of the act provides for a case where a bequest is made in lieu of commissions; but these bequests are given in addition to them and are not, therefore, within the purview of that section. As the sum is only five hundred dollars to each and is not made payable immediately, but-such payment is postponed, as stated, the present cash value is less than five hundred dollars, and thus all are exempt from the tax.

The bequests of five hundred dollars each to the several charitable institutions, are also exempt because payable at the end of a year from the date of the letters testamentary, and the cash value therefore is less than five hundred dollars, as recently held by me in the Matter of Peck, 2 Connoly Surr. Rep. 203. The legacy to the institution for the blind is claimed to be also exempt on the ground that it does not receive pay from patients under any circumstances. This is alleged on its behalf and is not controverted. Hence it is exempt as an almshouse, under subd. 4, sec. 1, title 1, chap. 13, part 1, Revised Statutes.

The testator bequeathed to Henry C. Rear, his foreman, who had for many years managed several large farms of his, the sum of four thousand dollars, payable as soon as might be after testator’s decease, upon condition that he should accept the same in full of all unsettled accounts and claims against him, other than the amount of any note or notes he might hold. It was made to appear that the amount of Kear’s claim for services was, exclusive of any such notes, somewhat in excess of the sum bequeathed, but that he was willing to accept the legacy in full. Had no bequest been made in this form, but Kear’s claim had been left in the class of “ all my just debts,” which a testator usually directs his executors to pay, it would certainly have been exempt from taxation. If he had simply bequeathed $4,000 without the mention of any claim, then it would have been taxable. Where a testator chooses to provide, in the form of a bequest, for the payment of a just debt, with a view possibly of obviating any question in the minds of his executors as to its amount or validity, he could do so with great propriety; but by doing it he could not clothe it with the character of a gift. Under the circumstances it will readily be seen that, by this provision of the will, no property is “ transferred by deed, grant, sale or gift,” as contemplated by the 1st section of this act, to Kear. He simply designates the mode of payment of a debt. It is accordingly held to be exempt from taxation under the act.