| N.Y. App. Div. | Sep 14, 1910
Lead Opinion
Order appealed from affirmed, without costs to either party, on the opinion of Mr. Justice Lyon at Special Term. All concur, except KELLOGG, J., dissenting in memorandum.
Dissenting Opinion
(dissenting). The village assessment roll was made as of May 1st and completed June 1st. The review day was June 24th, and the final hearing of the executors before the assessors was July 19th. Upon July 26th the assessors modified the assessment of the executors and fixed it at $1,833,845.79. Until the settlement agreement of June 19th, it was uncertain who were beneficially interested in the property held by the executors. Mrs. Arnot claimed it as next of kin. Certain corporations claimed it as legatees. It was uncertain whether an effectual will had been made or not, and that matter was on trial before the court. At the time of the hearing before the assessors it was definitely known who was interested in the estate, and it was clear that Mrs. Arnot, and those she represented, were the sole beneficiaries in $1,200,000 bf the trust funds, and that she owned also the household property, and on the 26th day of July the assessors completed the assessment by reducing it to the amount payable to Mrs., Arnot and those she represented, Yale University, and some other amounts which are not questioned.
The executors held title to the property, not only by the will and its probate, but also by an assignment from the next of kin. The probate of the will was brought about by an agreement which provided, in substance, that the next of kin should assign their interest in the estate to the executors for distribution pursuant to the terms of the will. The agreement of the next of kin to assign preceded the probate of the will. The interest of all the parties, therefore, stands upon the will and the settlement, treating them as an entirety. The executors and all the parties interested may defend their title by the will and also by the assignment from the next of kin. The executors were properly assessed for the taxable money and property in their hands on the day the assessment was made, unless it is shown that the tax-exempt corporations are the beneficiaries of the fund. The party attacking the assessment must establish its invalidity. It could not be said at the time the assessment was made that tax-exempt corporations were the sole beneficiaries of the fund held.by the executors and upon review day and when the assessment was completed it was entirely plain that so far as the trust fund was assessed it was owned by persons subject to taxation.
For these reasons, and the reasons stated in my memorandum relating to the town assessment of this same estate, I consider the assessment properly made and favor a reversal of the order.