Id.; When Not a Taxable Transfer. § 220 and devise as to the issue collectively of each of my children who shall have died during my life, leaving issue. To have and to hold to such issue in fee simple absolute. One other of said equal portions I give and devise to the persons hereinafter appointed as Trustee for each of my children living at the time of my death. To have and to hold such portion of each child in severalty in trust during the life of such child, and to receive the rents, issues and profits thereof during such life, and to apply the same to the use of such child during her life, and after the death of each of my children I give the portions so held in trust for her to her heirs at law subject, however, to the power of such child to devise hereinafter contained. Eighth. As to the portions of each of my children devised by the sixth item of this my will to the Trustees for the life of such child and after the death of such child to the heirs at law of such child, I hereby authorize each child by a last will duly executed to dispose of the remainder in fee after the termination of the trust estate by her death among her heirs at law and her collateral relatives in such proportion and manner and with such limitations as she may desire, and I declare the devise of each remainder at the foot of the sixth item of this my will to the heirs at law to be subject to this power given to each of my children. Janet S. Lansing died October 13, 1904, leaving a will wherein she exercised the power of appointment conferred upon her as follows: Second. Under and by virtue of the power and authority given to me in and by the last will and testament of my father, the late Thomas Suffern, and particularly in and by the Eighth Clause or subdivision thereof, I give, devise and bequeath, the equal share or portion of the estate of my said father, given and devised in and by the Sixth Clause or subdivision of his said will to the trustees appointed in and by the said will in trust for me to my said daughter, Janet Lansing McVickar, to have and to hold the same to her, her heirs and assigns forever, in fee simple and absolute ownership. § 220 Id.; When Not a Taxable Transfer. It will be observed that in the Cooksey Case (supra), the grantor of the power first gives the estate in remainder to such of his or her children as he or she may by will designate and appoint, and failing such appointment, then the remainder is given absolutely to the children who survive the life tenant, whereas in the Lansing Case the testator created a life estate in favor of his daughter, and upon her death gave the portion of his estate so held in trust to the daughter's heirs at law, subject, however, to the power of the daughter to appoint such property among her heirs at law, and her collateral relatives. An order was entered by Surrogate Fitzgerald of New York county, February 21, 1905, assessing a tax on the fund transferred by exercise of the power of appointment, and the executor and appointee appeals from this order, stating several grounds, the principal ones being that the granddaughter took a vested interest under the will of her grandfather in 1869; that the said Janet S. Lansing failed to exercise the power of appointment given her under her father's will, and that subdivision 5 of section 220 is unconstitutional. The Appellate Division affirmed the order of the surrogate, without opinion. The Court of Appeals, June 13, 1905, modified the order of the surrogate and the Appellate Division by deducting therefrom the value of the property over which the daughter, Janet L. Lansing, attempted to exercise an appointment in favor of her daughter Janet Lansing McVickar, holding, that by the will of the father of Janet S. Lansing and by the same sentence which created the trust during her life, the property was given after her death, to the granddaughter, Mrs. McVickar, who was the heir-at-law of the daughter Id.; Funds without This State. § 220 at the time of the grandfather's death; that it was not necessary to determine whether the remainder which Mrs. McVickar took under her grandfather's will was vested or contingent, as such interest was acquired at the instant of the grandfather's death, subject, however, to the power of appointment; that the power of appointment, as formally exercised, gave Mrs. McVickar all the property, the same as her grandfather had given it to her more than thirty years before, and that the exercise of this power by the will of Janet S. Lansing neither increased nor diminished the estate of Mrs. McVickar, and did not affect in any degree, the value of her grandfather's gift; that the execution of the power in this case left the title where it was before, and the result is the same as if there had been no power to exercise, and especially was this so as the granddaughter, Mrs. McVickar, claimed title to the property under her grandfather's will, and that nothing passed to her through the appointment in her mother's will. 193. Taxability of Transfers Where Funds over Which Power Is Exercised Are without This State. A nonresident testator, whose property was, and remained wholly in the State of his domicile, gave such property in trust to trustees who also resided at the testator's domicile, to pay the income thereof to his daughter for life, and after the daughter's death to pay or transfer the fund in such manner as she by her last will may direct, and in default of such appointment, to such persons as by the laws of Maryland may be entitled to the same as her heirs. At the time of the daughter's death in 1902 she was a resident of this State and left a will by which she appointed six legacies of $1,000 each, to be paid out of her father's § 220 Id.; Funds without This State. estate to certain nephews and nieces and the balance of said fund, together with her individual estate, she gave to her husband. The appraiser included in his appraisal the amount of the fund passing under the exercise of the power, as well as the daughter's individual property, and an order was made confirming the report and fixing the tax accordingly. Upon the appeal by the executor of the daughter's will, the surrogate held that while a strict construction of the statute (subd. 6 of § 220) would require the imposition of the tax, yet he did not think that the Legislature intended such a result, as applied to the facts in this case; that in the present case no transfer of any kind of any part of the assets of the estate of the nonresident testator in the hands of his trustees at the time of the death of his daughter has been effected or permitted by any law of the State of New York; that all of those assets were in the State of Maryland, held by trustees residing there, under a will of a citizen of that State and pursuant to the laws of that State. That in all of the cases it is quite clearly asserted that the tax is one, not upon property but upon transfers of property made by will or descent, where the right to make or receive such transfers is accorded by the laws of this State, and which right the sovereign power of this State may lawfully abridge by the amount of the tax. Matter of Thomas, 39 Misc. Rep. 136, 78 N. Y. S. 981. Citing Matter of Vanderbilt, 50 App. Div. 246–252, 63 N. Y. S. 1079; affd., 163 N. Y. 597, and Matter of Dows, 167 N. Y. 231. See In re Hull, 111 App. Div. 322, contra. No appeal was taken from this decision, doubtless for the reason that if the transfer was held a taxable transfer under the statute, it is not apparent how the Rights of Remaindermen. § 220 tax thereon could be collected, as the property transferred was all without this State and it does not appear that the appointees were residents, yet the courts have held that whether or not the tax can be collected is not to be considered, if the transfer is properly taxable. Matter of Dingman, 66 App. Div. 228, 229, 72 N. Y. S. 671. 194. When Remaindermen Not Bound by Acts of Life Tenant Failing to Exercise Power. Joshua Mather died in 1893, giving his nephew, Charles W. Mather, a life estate in his residuary estate, with power of appointment by will, or, if he left no will, then the remainder should pass to the nephew's heirs and next of kin. Upon the appraisal of the uncle's estate the nephew testified that the uncle, at the time of his death, was the owner of a certain piece of valuable real estate, and the tax was assessed upon the nephew's life estate therein, and the tax on the remainder was suspended until his death, whereas it appeared when the nephew died that the uncle had conveyed this piece of real estate to the nephew in his lifetime by a duly executed but unrecorded deed, and that the nephew, not the uncle, was the owner at the time the tax was assessed. The court held that the nephew having for some undisclosed reason voluntarily determined to ignore his absolute title to the property and to submit to the imposition of the transfer tax upon his life interest, such transfer tax should not be vacated. The court held further, however, that the statement of the nephew, who died intestate, was not binding upon the remaindermen, and that they could claim their title to this real estate through the deed from their uncle to their |