§ 220 Transfer of Title - - When Title Vests. or forbidden by the statute, and such right is recognized by the authorities. * The fact that the tax is payable at the death of the testator controls the question of interest, but certainly controls no other question germane to the point now under consideration." 20. Tax Will Attach upon the Devolution of Title. It matters not whether the transfer is by grant or by gift, so long as it was intended to take effect in possession or enjoyment at or after the death of the grantor, the devolution of title is subject to the tax. Matter of Greene, 153 N. Y. 223. 21. Transfer of Title, Time of. The death of the testator is the time of the transfer of title to a legacy in remainder where there is no uncertainty who will take the remainder, although it is uncertain when the legatee will receive the legacy. Matter of Sloane, 154 N. Y. 109. 22. When Legal and Equitable Title Vests. Where property is bequeathed to a mother for life with remainder to a sister, the entire legal and equitable estate vests in the sister upon the death of the mother, and a residuary legatee of the sister takes such remainder subject to the transfer tax. Matter of Zefita, 167 N. Y. 280. 23. Amount of the Tax- How Measured. The amount of the tax is measured by the sum or value of the property received by the legatee. Matter of Hoffman, 143 N. Y. 327; Matter of Westurn, 152 N. Y. 93. 66 Beneficially Entitled "Estate" "Deed." - § 220 24. Meaning of Provision "When Person Becomes Beneficially Entitled," etc. Subdivision 3 of section 1 of the Act of 1892 (now subdivision 5, section 220), which provides that" when any such person or corporation becomes beneficially entitled in possession or expectancy to any property or the income thereof by any such transfer, whether made before or after the passage of this act," relates to the instrument of transfer; and is meant to cover a case where, by the terms of such instrument, no taxable estate, either in possession or expectancy, attached until after the passage of the act, and not to a case where the transfer was prior to the passage of the act, although the happening of the event, or the contingency upon which the estate actually vested in possession, took place after its passage. Tallmadge v. Seaman, 9 Misc. Rep. 303, 30 N. Y. S. 304. In the Matter of Seaman, 147 N. Y. 69, this provision was held not to affect rights of succession which accrued before the statute came into existence. 25. Meaning of the Word "Estate" Prior to Act of 1892. 66 Prior to the Act of 1892 the word " estate," as used in the proviso in the Collateral Inheritance Tax Act, referred to the interest of the legatee or distributee, and not to the whole estate of the decedent. Matter of Sterling, 9 Misc. Rep. 224, 30 N. Y. S. 385; Matter of Cager, 111 N. Y. 343; Matter of Howe, 112 N. Y. 100; Matter of Westurn, 152 N. Y. 93. 26. To What the Word "Deed " Refers to in this Act. The word" deed " as used in this act has no reference to conveyance of property by such an instrument made in the ordinary course of business for a valuable § 220 Intestate Laws Distribution Among Collaterals. consideration, but is confined to conveyances of real property, intended as gifts, and it is also quite evident that it was intended to eliminate any technical distinction between gifts of real property and personal property, and place both claims in the same category so far as the taxation of the transfers thereof under this act are concerned. Matter of Birdsell, 22 Misc. Rep. 180, 49 N. Y. S. 450; affd., 43 App. Div. 624. 27. The Term "Intestate Laws." "The term 'intestate laws' is intended to cover the statute of descent which relates to the descent of real estate, and the statute of distribution, which provides for the distribution of the surplus of the personal property of decedent, after the payment of his debts and legacies if he left a will, and after setting apart to the widow and minor children the exemptions specified in section 2713." Matter of Page, 39 Misc. Rep. 220, 221, 79 N. Y. S. 382. 28. Intestate Law-Distribution Among Collaterals. Prior to 1898, subdivision 12 of section 2732 of the Code of Civil Procedure* read: "No representation shall be admitted among collaterals after brothers' and sisters' children." In 1898 said subdivision was amended to read as follows: "Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate." Where an intestate is survived by nephews and nieces and by grandnephews who are children of a deceased nephew and niece, all of such persons having sprung from the intestate's deceased brother, the grandnephews are entitled to receive their parent's * Now subd. 12 of § 98 of chap. 18 of the Laws of 1909, as amended by 14 of chap. 240, Laws of 1909. Intestate Laws Distribution Among Collaterals. § 220 share of the personal estate. Matter of Ebbets, 43 Misc. Rep. 575, 89 N. Y. S. 544; Matter of McGovern, N. Y. Law Journal, March 26, 1903, distinguishing Matter of Davenport, 172 N. Y. 454; Matter of Hadley, 43 Misc. Rep. 579, 89 N. Y. S. 545; Matter of Kearney, N. Y. Law Journal, May 4, 1905. Subdivision 12 was further amended by chapter 539 of the Laws of 1905, in effect May 18th of that year, so as to read: "No representation shall be admitted among collaterals after brothers' and sisters' descendants. "This act shall not apply to an estate of a decedent who shall have died prior to the time this act shall take effect." See Matter of Clark, N. Y. Law Journal, July 31, 1906. In the Matter of Nichols, 60 Misc. Rep. 299, the court says: "Under this subdivision, the descendants of brothers and sisters to the remotest degree, by representation, share in the distribution of an estate. All collateral relatives, except descendants of brothers and sisters, are precluded from sharing in the decedent's estate by representation. Where they are all of the same degree of kinship, to wit, uncles and aunts, and nephews and nieces, the rule of representation does not apply, still they take by reason of that degree. 66 'In the case at bar, the uncles and aunt are of the third degree of kinship, while all of the cousins are of the fourth degree. It therefore follows that the cousins are precluded by reason of their degree of kinship, and by reason of the prohibition found in said subdivision 12, from sharing in the distribution of this estate. Matter of Davenport, 172 N. Y. 454. "Subdivision 10 of section 2732 provides that, 'Where the descendants, or next of kin of the deceased, entitled to share in this estate, are all in equal degree to the deceased, their shares shall be equal.'" Following this decision the surrogate of Kings county held in the Matter of Barry, 62 Misc. Rep. 456, that where an intestate leaves no nearer kin than cousins and descendants of deceased cousins, the cousins take under subdivision 12, section 2732, of the Code of Civil Procedure to the exclusion of the descendants of deceased cousins. Prior to the enactment of chapter 41 of the Laws of 1903 the real property passing to those in the 1-per cent. class was not taxable, and it was held that the character of the property, as it existed at the time of the decedent's death, determined its liability to taxation, and that the doctrine of equitable conversion would not be invoked to make real property passing to the 1-per cent. class subject to tax. Matter of Swift, 137 N. Y. 77; Matter of Sutton, 3 App. Div. 208, 38 N. Y. S. 277; affd., 149 N. Y. 618; Matter of Offerman, 25 App. Div. 94, 48 N. Y. S. 993; Matter of Livingston, 1 App. Div. 568, 37 N. Y. S. 8; Matter of Cobb, 14 Misc. Rep. 409, 36 N. Y. 448. 30. Where Legatee Dies before Conversion Takes Place. In the Matter of Mills, 86 App. Div. 555, 67 N. Y. S. 956, 84 N. Y. S. 1135; affd., 177 N. Y. 562, a decedent's will directed that his real estate be converted into personalty, and his daughter was entitled to a share of the proceeds of the realty. The daughter died before an actual sale of the real estate, leaving a will, by which her interest in her father's estate passed to her husband. Held, that the interest in the proceeds of the real estate to which the daughter (Mrs. Mills) was entitled, and which passed under said daughter's will to her husband, should, for the purpose of the transfer tax, upon the transfers from the daughter to her husband, be treated as personal property and not as realty. That Mrs. Mills, the daughter, did not die possessed of the title to the real estate; she died possessed of a right to a distributive share in the proceeds of real estate which her father's executor was directed to sell. Her legatee could not, in law, have |