103 Misc. 111 | N.Y. Sur. Ct. | 1918
The decedent died a resident of Bronx county on the 22d day of July, 1915, intestate, and his widow, Mary Bowe, was appointed the administratrix of his goods, chattels, etc.
It is conceded by all parties that he left him surviving (a) his widow, Mary Bowe; .(b) his nephews, Bichard Bowe, William S. Bowe and Thomas F. Bowe, and his niece, Mary L. Lott, children of Thomas Bowe, sometimes also known as Thomas F. Bowe, a brother of the decedent; (c) his nieces, Bridget Langrick, Catherine E. Boss, Margaret M. Lynch, and his nephew, Joseph Lynch, who are the children of Mary Lynch, a sister of the decedent, who died prior to his death, and (d) his grandnieces, Mary Jane Lynch and Catherine M. Lynch, and his grandnephews, William 0. Lynch, Thomas P. Lynch and Joseph L. Lynch, the children of Thomas Lynch, a nephew of the decedent, who predeceased him, and who was a son of his deceased sister, Mary Lynch, whose other children are set forth under subdivision “ c.”
Thomas Bowe, also known as Thomas F. Bowe, the father of the persons enumerated under subdivision “ b, ” and Michael Lynch, a nephew of the decedent and one of the children of Mary Lynch, whose other children are enumerated under subdivision “ c,” have disappeared, and it is not known as a fact whéther
Four appeals have been taken from the order assessing the tax entered upon the report of the appraiser herein upon various grounds, which may be briefly stated as follows:
(1) The Lawyers Title and Trust Company and the children of Thomas Rowe (see subd. “ b,” supra) claim that error was committed by the appraiser, because he assessed the tax upon the theory that Thomas Rowe predeceased his brother, and at the highest rate.
(2) The nephews, nieces, grandnephews and grandnieces set forth in subdivisions “ c ” and “ d ” who are adults contend that the appraiser has erroneously stated the cash value of their respective interests and omitted to state the cash value of the interest of Michael Lynch, if living, and of his heirs at law and next of kin, if dead.
(4) The state comptroller alleges error on the part of the appraiser in fixing the value of the interests of the grandnephews and grandnieces set forth in subdivision “ d ” and in fixing the amount of the tax assessed thereon.
A determination of the appeal designated “(1)” will, to a large extent, dispose of the remaining appeals. Concretely stated, it requires a solution of the questions, Is Thomas Rowe, sometimes known as Thomas F. Rowe, the father of the nephews and nieces named in subdivision “ b,” dead? and, if so, Did he die before or after his brother, William Rowe, the decedent? If he survived the decedent, he was entitled to receive his statutory share of the real and personal property, and his children would not take directly from the decedent (Decedent Estate Law, § 87, being Laws of 1909, chap. 18, and constituting Consol. Laws, chap. XIII), and hence would not be parties to this proceeding. In that event, the share of Thomas, after an exemption of $5,000, would be taxable at the rate of one per cent. Laws of 1915, chap. 664. If, on the other hand, he died prior to the decedent, then his children,, as nephews and nieces of the decedent, would take directly from the testator (Decedent Estate Law, supra), and their respective shares, after an exemption of $1,000, would be taxable at the rate of five per cent. Laws of 1915, chap. 664. Again, on the first hypothesis, the nephews and nieces who are set forth under “b ” and “ c, ” the grandnephews and grandnieces set forth under “ d,” and the nephew Michael Lynch (assuming that he is alive), would be entitled
It will be observed that the questions raised on these appeals involve a determination of the shares of all of the heirs at law and next of kin of the decedent which will also be necessary before a decree may be entered upon the accounting.
The evidence before the appraiser bearing upon the alleged death of Thomas Rowe consisted mainly of a copy of the record of the proceeding heretofore had in the Surrogate’s Court of New York county. This was brought upon the petition of the children of Thomas Rowe that letters of administration upon his goods, chattels, etc., be issued to the Lawyers Title and Trust Company. A surrogate of New York county referred the matter to a referee to hear testimony and to report his opinion thereon. The referee duly rendered his
The first query to be answered is whether in all proceedings after the date of the order the adjudication thus made must be treated as conclusive upon the question of the daté of the death of Thomas Rowe. To me it appears very clearly that such is not the case. Williams v. Post, 158 App. Div. 818; Eckersley v. Curran, id. 440. The proceeding had for its purpose the issuance of letters of administration upon the estate of Thomas Rowe. It was ex parte, only the children of Thomas, who were the petitioners, being parties thereto. None of the other persons having an interest in the estate of this decedent had any notice thereof, so far as is disclosed by the record, and they were not entitled to such notice. The proceeding affected an entirely different estate. In the absence of a controlling authority to the contrary, and none has been drawn to my attention, I hold that the order above referred to is not conclusive upon me in this proceeding as fixing the date of the death of Thomas Rowe. It is evident that such was the view of the learned referee and of the learned court in the' New York county proceeding, for the former says in his opinion: “Nevertheless, this proceeding, though it may-result in the issuance of letters, will not, in my
It therefore becomes necessary to examine the proofs before the appraiser to ascertain whether he was warranted in the conclusion which he reached that Thomas Bowe predeceased the decedent.
From the record of the administration proceeding in New York county which is in evidence, it appears that the decedent was born in Ireland about 1844, came to New York in 1851 and married in 1865. That he was an ironworker and that for three years before 1874 he had been in the employ of the United States Navy Yard, Brooklyn, as a first-class mechanic. That in or about 1874 he left his wife and four children and was never again seen or heard of by any of his children and so far as known by his wife, and that none of his children ever heard that he had died or made any search for him until after the death of the decedent. After September 8, 1915, exceptionally thorough, diligent and painstaking efforts were made to find the said Thomas Bowe, but without success.
It appears, however, that he did in some measure remain in touch with the decedent and also with his sister after his disappearance from home. There is a
Under such circumstances what, if any, finding may be made as to the fact and time of his death? In cases where estates in lands depended upon a life and the person upon whose life the term was limited had disappeared, as also in cases where one of the parties to a marriage had disappeared, it was recognized in England at an early date that often great hardship and injury was caused to the remainderman in the one case and to the husband or wife in the other through the inability to prove the death of the missing party. This resulted in the statutes with respect to tenancies for life (19 Car. II, chap. 6, § 2), and with reference to bigamy (1 Jacob, 1, chap. 2), in which it was provided that after the lapse of a certain number of years the person who had thus disappeared should, under certain conditions, be presumed to be dead. Section 841 of the Code of Civil Procedure reflects the former, while the latter is in a general way perpetuated in section 341 of the Penal Law, being chapter 88, Laws of 1909, and constituting chapter XL of the Consolidated Laws.
The presumption was thereafter extended to cases involving personal property. McCartee v. Camel, 1
In Matter of Wagener, 143 App. Div. 286, it was held that the general rule that an absentee who had not been heard from for seven years may be presumed to be dead at the expiration of the seven years for the purposes of the distribution of his estate is well settled, and in a case similar to this one the court, in Matter of Benjamin, 155 App. Div. 233, in reversing the court below, said: “ This court has so recently laid down rules as to the presumption of death arising from long-continued and unexplained absence that no further discussion of that question is now required.” In that case a woman thirty-four years of age disappeared in 1873. Careful search was made, but no trace of her could be found, and the court in applying
At the time the decedent disappeared he left in addition to his wife four children, ranging in age from six weeks to six years. He also had relatives living in the west and a brother here, who after his disappearance did much to relieve the distress of the abandoned family and to assist the mother in bringing up her children. All of the direct testimony is to the effect that he never communicated with his wife and children and never from the day of his disappearance was seen or heard of by them. The only evidence that his brother ever heard of him is the fragment of the letter hereinbefore referred to. If, then, we consider the question with a premise most favorable to the rights of Thomas, and assume that he was alive in the year 1894, when the fragment of the letter was apparently written (an assumption which, I think, is unwarranted for the reasons above stated) and go even further than that and assume that he was alive during the whole of that year, the conclusion would follow that he has not been seen or heard of by any member of his family since December 31,1894.
Upon the facts stated in the affidavit and the record of the proceeding in New York county, as to all of which there appears to be no dispute between the parties, and under the authority of Matter of Benjamin, supra, this is a case in which the presumption that the decedent was dead after seven years from December 31, 1894, is fully justified, and this is the conclusion
It follows, therefore, that the appraiser was correct in assessing the tax upon the theory that Thomas Rowe, sometimes known as Thomas F. Rowe, predeceased his brother.
There is no evidence before me sufficient to raise a presumption that Michael Lynch is dead. I have been unable to find any evidence anywhere which shows when and wider what circumstances he disappeared and what, if any, efforts' were ever made to locate him. In this proceeding his share is therefore taxable.
It appears from the appraiser’s report that he has fixed the value of the shares of the children of Thomas set forth in subdivision “ b ” upon the theory that they received one-eighth of the estate each, after the deduction of the widow’s share, etc.; that is to say, upon the assumption. that they took their deceased parent’s share; that he valued each of the shares of the children of Mary Lynch set forth in subdivision “ c ” as one-tenth of the estate after the same deductions, the other one-tenth being divided among the grandnieces
In holding thus he was in error. The decedent having died and having left only nephews, nieces, grandnephews and grandnieces, the nephews and nieces, as heretofore stated, share alike per capita, and the grandnephews and grandnieces take per stirpes the share which their parent would have taken if living. It follows that each of the nephews and nieces takes one-tenth and each of the grandnephews and grandnieces takes one-fiftieth of the distributable estate, after the deduction of the widow’s share. It will be observed that in the case of the nephews, nieces, grandnephews and grandnieces, set forth in subdivisions “ c ” and “ d,” the value of their respective shares is the same as that found by the appraiser, except for a clerical error, not disputed, made in the case of the grandnephews and grandnieces, and except that Michael’s interest should also be provided for.
This disposes of the appeals denominated “ (1),” “(2)” and “(4).” The appeal numbered “(3)” was taken by a special guardian who had not been appointed to act for the infants in this proceeding, and hence had no standing in it. But the questions raised by his appeal were also urged by one of the other appellants and have been disposed of, so that it is not necessary further to consider the appeal by him.
I have the power to determine the cash value of the various shares and the amount of the tax in each case without appointing an appraiser (Tax Law, § 231,
The value of the share of the widow is $20,347.69, the exemption $5,00Q, and the amount taxable $15,347.69. The value of the share of each nephew and each niece is $7,808.36, the exemption $1,000, and the amount taxable $6,808.36, and the share of each grandnephew and' each grandniece is valued at $1,561.67; the amount of the exemption is $1,000, and the amount taxable $561.67.
Decreed accordingly.