118 N.Y.S. 680 | N.Y. Sur. Ct. | 1909
If, as both of the parties to this appeal appear to assume, Mr. Greehbaum upon his admission as a partner ini the firm of Vivanti Brothers acquired the right ¡and assumed, the
The decedent’s rights in certain lands in Japan were taxed as personal property. Each parcel of this land is represented by á lease from the Japanese government to the decedent or to the grantor of the decedent, 'his heirs, executors, administrators and .assigns, at a fixed and stipulated annual ground rent, to run as long as such ground rent shall continue to be paid, with the right to the lessee to transfer the lease or rights therein acquired "to any person who is a citizen or subject of a country having a treaty with Japan. In the térms of our law these leases can perhaps be described as perpetual leases reserving rent. Under our law a perpetual lease of this kind is not an asset passing to executors or administrators, but is real property, which passes to the heir (Code ‘Oiv. Pro., § 2712; Millard v. Mulling, 68 N. Y. 345, 352), and it is real property within the definition of that term contained in chapter 18 of the Code of Civil Pro
The ruling of the appraiser, refusing to deduct from the appraisal the value of the widow’s dower right, is affirmed. Estate of Henry I. Barbey, N. Y. L. J., March 2, 1908, and cases cited.
The valuation of the properties Eos. 50 and 52 East One Hundredth street will be reduced to $28,000 each, upon the evidence submitted.
As to the excess commissions, upon the stipulation filed their amount must be fixed at $2,864.68, and a tax will be imposed thereon against the executor at five per cent. Tax Law, § 226. This sum is included in the valuation of the income of the life beneficiary, and there is consequently a double taxation. To avoid this the sum of $2,864.68 must be deducted from the value of the property passing to such life beneficiary.
Settle order on notice.