Where property was deeded in 1882 to trustees in trust to pay income to decedent for life, and on her death to convert it into money and distribute it to nephews and nieces, and where the death of decedent occurred after the Act of 1885 went into effect, it was held that the legacies to the nephews and nieces were exempt. (Matter of Hendricks, 18 St. Rep. 989.) Remainders transferred to the donees in possession or enjoyment by an instrument intended to take effect for that purpose at or after the death of the donor, are subject to the tax, whether the transfer is by grant or by gift and whether the donees were residents of this state or not. (Matter of Green, 153 N. Y. 223, reversing s. c. 7 App. Div. 339.)

By a trust deed acknowledged October 20th, 1892, by Eugene C. Cruger and by his wife October 25th, 1892, the said Eugene assigned and transferred to trustees certain personal property in trust, (1) to keep the principal invested as directed and collect the income, and after deducting taxes and expenses during his life to pay to his daughter Angele, her executors and administrators, the sum of twelve hundred dollars annually, in equal monthly payments, and any balance of said income to the creator of the trust; (2) at his death to pay over the trust fund and any accumulated income to Angele Cruger, if living, or if she be dead, then to her issue, or in default of issue, then to such person as Angele Cruger should by will appoint, or in default of such appointment, then to such person as would be entitled to the same under the laws of the state of New York had Angele Cruger died intestate and in possession of the property. Angele died September 2, 1896, intestate, un

married, without issue and without having exercised her power of appointment under the trust deed. The creator of the trust died April 4, 1898, and the corpus of the trust estate thereupon passed to the next of kin of Angele Cruger, with the exception of her mother. Held, that the next of kin took the contingent remainder dependent upon the death of Angele Cruger within the lifetime of her father, unmarried and without issue and without having exercised the power of appointment given her by the trust deed. These events happening, the contingent remainder became a vested remainder in equal shares, and the estate took effect in possession or enjoyment at or after the death of the donor and is liable to the tax. (Matter of Cruger, 54 App. Div. 405.)

Contingent and expectant estates.

The statute does not contemplate those cases only where the interests created are capable of valuation at the death of the testator. Contingent interests may be taxed when they vest in possession and their value can be ascertained. (Matter of Stewart, 131 N. Y. 274, reversing s. c. 61 Hun, 554, aff'g s. c. 10 Supp. 15.)

When the question as to whether any property at all shall pass as a remainder and, if so, how much, depends upon the will of the first taker, there is no basis upon which the value of the devise can be appraised, and no foundation for the imposition of any tax. (Matter of Cager, III N. Y. 343, aff'g s. c. 46 Hun, 657.)

Contingent and expectant estates can be taxed only when they become fixed and actual. (Matter of Hoff

man, 143 N. Y. 327, aff'g, on this point, s. c. 76 Hun, 399, and reversing, on this point, s. c. 5 Misc. 439; Matter of Wescott, 11 Misc. 589; Matter of Roosevelt, 143 N. Y. 120, aff'g s. c. 76 Hun, 257; Matter of Le Fever, 5 Dem. 184; Matter of Leavitt, 4 Supp. 179; Matter of Clark, 5 Supp. 199.)

Where the remainder of an estate cannot be fixed because of the power given to the life tenant to use the principal, a tax on the remainder cannot be assessed until the death of the life tenant. (Matter of Hopkins, 6 Dem. 1.) When property is devised in trust for persons exempt from taxation under the Act, and it cannot be determined until the end of the trusts whether the remainders will pass actually and beneficially to persons in whose hands it will be taxable or to others in whose possession it will be exempt, no appraisement of the contingent remainders should be made until such interests become vested in possession on the termination of the trusts. (Matter of Curtis, 142 N. Y. 219; s. c. 73 Hun, 185.)

SUBDIVISION 5. EXERCISE OF Power of APPOINT

MENT.

Amendment to subdivision constitutional.

The amendment of 1897, providing that whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this Act, such appointment when made shall be deemed a transfer taxable under the provisions of this Act, in the same manner as if the property to which such appointment relates belonged absolutely to the donee

of the power and had been bequeathed or devised by such donee by will, is constitutional. And upon a devise of one-fifth of a residuary estate to a daughter for life, and upon her death to be divided among her issue her surviving, with a provision which gave her power to appoint, by will, such share to and among the testator's descendants living at her death, in such proportion and upon such lawful trusts and conditions as she should think proper, an appointment by her of the property in equal portions among her daughters her surviving is taxable. (Matter of Potter, 51 App. Div. 212; and see Matter of Vanderbilt, 50 App. Div. 246; followed Matter of Vanderbilt, 58 App. Div. 619; aff'd 166 N. Y. 640.)

Object of amendment.

The direct object of the amendment of 1897 was to make the time at which the appointee would become entitled in possession the time at which the tax upon the right of succession should be imposed. The act constituting the transfer is declared to be the exercise of the power of appointment. And the authority of the state to impose a tax on the right of succession continued until the time at which the extent of that right was finally fixed by the exercise of the power of appointment. (Matter of Vanderbilt, 50 App. Div. 246; followed Matter of Vanderbilt, 58 App. Div. 619; aff'd 166 N. Y. 640.) But where the right of succession to the property in question passes to the beneficiaries under and by virtue of a will that went into effect long before the enactment of a Transfer Tax Law, the property is not subject to the tax. So, bequests in the exercise of a power by will executed after the enactment of

the Transfer Tax Act of 1892, but created by a will which took effect before the enactment of any Taxable Transfer Law, are not subject to the transfer tax, since the source of title is the will creating the power into which the names of the appointees must be read, and their right of succession vests, not at the time of the execution of the power, but at the time the will creating it went into effect. (Matter of Harbeck, 161 N. Y. 211, reversing s. c. 43 App. Div. 188.)

Where property is bequeathed to one for life with remainder over, subject to a power of appointment conferred on life tenant, and the power is exercised in favor of the remainderman by will admitted to probate on the same day on which the remainderman dies, the property passes under the latter's will and is subject to the transfer tax. (Matter of Chabot, 44 App. Div. 340.)

When tax not ascertainable.

A will of more than ten thousand dollars personalty provided as follows:

Fourth. I give, devise and bequeath the remainder of my property, both real and personal, to my surviving sisters, to share and share alike, for their sole and separate use so long as both shall live, and the last surviving one to have the use of the whole amount as long as she shall live.

Fifth. After the decease of both my sisters, the income from all of my property, both real and personal, shall be divided between the surviving children of my sister Mary Ann Gay, to share and share alike, so long as they shall live.

Sixth. Upon the decease of either or all of the above