Amendments from June 1, 1905, to June 1, 1909. To Section 232. § 220 By chapter 310, Laws of 1908, in effect May 18th of that year, section 232 was amended in two particulars: First. By providing that no costs should be allowed by the surrogate on appeals to him under said section. Second. That application for a reappraisal by the Comptroller as provided by section 232 could be made to a justice of the judicial district "embracing the Surrogate's Court in which the order or decree has been filed." The former statute requiring application to be made to a justice of the judicial district "in which the former owner of such estate resided," would not permit of a reappraisal of the estate of a non-resident decedent under this section. To Section 237. By chapter 310, Laws of 1908, in effect May 18th of that year, the fees of county treasurers on the second fifty thousand dollars of tax collected during any fiscal year was reduced from three, to two and one-half per centum. Several other amendments affecting the appointment of appraisers, stenographers, clerks, and expense accounts which are purely local, are not mentioned here, but are particularly referred to in the footnotes to each section so amended. Chapter 62 of the Laws of 1909, being chapter 60 of the Consolidated Laws, made no material change in the phraseology of the statute except as noted herein and shown by the footnotes to each section. The printed numbers of the sections between section 240a and 243 were changed owing to section 240a being number § 241, and a new section numbered 245, was added, said section being revised from section 282 of said Tax Law, so as to apply wholly to proceedings under the Transfer Tax Law. CHAPTER II. THE GENERAL SUBJECT CONTINUED. 66 15. Meaning of the word trans- 18. When transfer assumed to 19. When tax attaches to legacy. 21. Transfer of title- time of. 23. Amount of the tax - how 24. Meaning of provision “When 15. Meaning of the Word "Transfer." "A tax shall be and is hereby imposed upon the transfer of any property (§ 220 of the Transfer Tax Law.) The Court of Appeals, in the Matter of Gould, 156 N. Y. 423, construes the word "transfer " as used in this act as follows: "It is certainly within the constitutional power of the Legislature to tax all property by will, whether the motive of the testator be to make a gift, or pay a debt, and the language, absolutely unambiguous and free from saving clauses, which the Legislature employed to accomplish that result, affords the best indication that the word Transfer - Meaning of - When Takes Place. § 220 'transfer in the statute is used advisedly and according to its ordinary legal signification, which is that the owner of a thing delivers it to another person with the intent of passing the rights which he has in it to the latter. It matters not what the motive of a transfer by will may be, whether to pay a debt, discharge some moral obligation, or to benefit a relative for whom the testator entertains a strong affection, if the devise or bequest be accepted by the beneficiary, the transfer is made by will, and the State by the statute in question makes a tax to impinge upon that performance." "Transfer" means the passing of property in possession or enjoyment, present or future, without regard to whether the actual possession and enjoyment follow immediately or come at some future time. Matter of Hitchins, 43 Misc. Rep. 485, 89 N. Y. S. 472; affd., 92 N. Y. S. 1128; affd., 181 N. Y. Mem. 51, no opinion. 16. When the Transfer Takes Place. The Court of Appeals, in the Matter of Seaman, 147 N. Y. 69–76, in referring to the time when a transfer takes place under subdivisions 1 and 2 of section 1 of the Act of 1892, which are the same as subdivisions 1 and 2 of section 220 of the Act of 1896, and corresponding section of the Act of 1905, says that the first and second subdivisions aforesaid embrace transfers of property, by will or intestate laws, of residents or nonresidents, and that "so far, the transfers take place necessarily at the moment of death, for the will on the one hand and the intestate laws on the other operate and speak from that date, and any special provision about that was needless.' § 220 Contingent Interests - - When Transfer Takes Place. 17. When Transfer Takes Place in Respect to Contingent Interests. A decedent gave to his executors in trust a fund of $500,000 for the benefit of his granddaughter, Nettie Gerstle, who was fifteen years of age, she to receive the income during her life and upon her marriage $200,000 of the principal, and upon her death the principal was to be divided equally among her children and issue of deceased children and in default of issue it was to be divided into two parts, and one of such parts was given to four certain charitable and hospital corporations to be divided equally among them. The appraiser reports the value of the life estate in the fund and the value of the remainder interests. The remainder interests of each of the corporations is fixed at $11,007.37 and the order assesses a tax thereon of 5 per cent. The corporations appealed, contending that as to their remainder interests there has been no transfer, and that there will not be any to them unless Nettie Gerstle should die without issue her surviving. Surrogate Thomas held that the decision in Matter of Vanderbilt (172 N. Y. 69) and Matter of Brez (id. 609) were fatal to this contention. That there was a consummated transfer to the trustee at the moment of the testator's death, and upon this transfer the tax is imposed. Matter of Guggenheim, N. Y. Law Journal, Jan. 4, 1906; affd., 116 App. Div. 914, 189 N. Y. 561. 18. When Transfer Assumed to Have Been Made within This State. Where it is not claimed that the property conveyed in trust during the lifetime of a decedent to vest in When Tax Attaches to Legacy. § 220 a beneficiary on her death was outside the State, or that the deceased was not a resident of the State at the time the transfer was made, or that the transfer was not made here, it must be assumed the transfer was made within the State and a transfer tax may be imposed upon it after the death of the intestate. Matter of Keeney, 194 N. Y. 281. 19. When Tax Attaches to Legacy. It is apparent that the decision in the Matter of Seaman (supra) is not controlling in the general broad view that a transfer of personal property to a legatee by will takes place at the moment of the decedent's death, as the Appellate Division, in the Matter of Wolfe, 89 App. Div. 349, 85 N. Y. S. 949; affd. on opinion below in 179 N. Y. 599, held that no taxable transfer to a certain legatee had been made under a decedent's will where the legatee, eight months after decedent's death, renounced his legacy, as in that case the tax would be imposed not upon the transfer, but upon the attempt to transfer. The court, referring to the opinion of Judge Cullen in the Matter of Gihon, 169 N. Y. 443, says: "Personal property does not pass directly from the deceased to his legatee, or next of kin, but all that such legatee or next of kin takes is what may be coming to him from the estate on distribution after settlement." The Appellate Division further says: "If no transfer is effected because it turns out that there is no property to transfer, no tax can be collected, and if the legatee renounces the gift and refuses to receive it, no tax can be collected with respect to him, because there has been no transfer to him. His right to renounce the privilege of accepting the donation is not denied |