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§ 230

Where Executors Are to Divide Estate.

not subject to a transfer tax as passing under the subsequent will of the testatrix. Matter of Wheeler, 115 App. Div. 616.

521. Procedure Where Executors Were Given Residuary Estate to Divide Among American Charities.

A decedent who died December 5, 1905, after making nominal cash bequests to certain collateral relatives gave the residue of his estate, amounting to upwards of $28,000, to his executors to divide the surplus among such American charities as they may think well of, with a request that these sums be given "to any society that assists poor needlewomen (seamstresses) whose toil is so poorly requited. If no such organization exists, the money to be divided for the benefit of incapacitated sailors and their families." The appraiser reported the value of the residuary estate as held by the executors for the benefit of the 5-per cent. class, and an order was entered imposing a transfer tax thereon. The executors appealed on the ground that the bequest of the residuary estate was to or for a charitable institution. Surrogate Thomas held that on the facts before the appraiser he was qualified in reporting the residuary estate as taxable. "The executors, however, may have three months in which to make payment of the fund to a domestic charitable corporation or corporations, reserving sufficient to pay the tax at 5 per cent., with interest and penalty. If at the expiration of that time they are prepared to make proof before the appraiser that they have done so, the report will be remitted to him to take such proof. If not, an order may then be submitted affirming the order fixing tax." Matter of Paul, N. Y. Law Journal, March 27, 1908.

Where Claim Is Made to Part of Estate.

§ 230

522. Where Claim Is Made to One-half of a Decedent's Estate, Taxation Thereof Will Be Reserved.

In the appraisal of the estate of James L. Blodgett, of Wyoming county, it appeared that the decedent died December 6, 1906, intestate, leaving an estate of $338,541.45, and his only next of kin was a niece, the daughter of a deceased brother. From the testimony before the appraiser it appeared that Lewis Blodgett, the father of decedent, died intestate in 1870, leaving him surviving a widow and two sons, Horace L. and James L., the decedent; that the two sons were appointed administrators of their father's estate, but there was no record of any judicial settlement or division of the estate. The widow died in 1880 and in 1888 Horace Blodgett was declared a lunatic and a committee was appointed for him and continued until his death in 1899. No demand was ever made upon James L. Blodgett by the committee of Horace L. Blodgett for an accounting, and after Horace L. Blodgett's death the daughter of said Horace L. Blodgett never asked for an accounting in respect to the share of her father's estate. Testimony was given by the niece showing that Lewis Blodgett left a large estate which passed to his sons subject to the rights of the widow, and that James L. Blodgett had always had control thereof, but no attempt was made to show specifically the amount of the property left by the said James L. Blodgett. The niece claimed that she was entitled to one-half of the estate of James L. Blodgett as the property of her father, the deceased Horace L. Blodgett, and was entitled to the other half thereof as the next of kin of the said James L. Blodgett.

The appraiser reported that no definite amount had been proven in favor of the representatives of the es

§ 230

Adeemed Property ·

How Taxed.

tate of Horace L. Blodgett, and therefore held that the whole estate of James L. Blodgett passed to the niece and was taxable at 5 per cent. The attorneys for the niece filed a written instrument with the surrogate conceding that one-half of the fund as appraised belonged to the decedent James L. Blodgett, and was properly taxable at 5 per cent., and asked that the taxation of the other half be reserved. The surrogate entered an order taxing the one-half of the estate at 5 per cent. and reserving the taxation of the other half until the determination of the validity of the claim of the niece thereto, and this order was affirmed by the Appellate Division in Matter of Blodgett, 119 App. Div. 917.

523. Where Life Estate Is Adeemed the Property Should Be Taxed as Part of the Residuary Estate.

A decedent devised certain real property to his wife during her lifetime, but before his death he executed a contract for the sale of said premises and the sale was consummated by the widow after his death. The appraiser assessed the value of the life estate in this property against the widow. The court held that this was a mistake, as there was an ademption of this property and it should be taxed as part of the residuary estate. (Ametrano v. Domes, 179 N. Y. 390.) Matter of O'Day, N. Y. Law Journal, December 29, 1908, Surrogate Beckett.

524. Appraisal of Sum Given to Persons Taxable at Different Rates, for Care of Invalid.

Where a codicil to decedent's will provides that as the brother of testatrix was unable to care for himself it was her wish that one of her sisters and the

When Tax Assessed Individually.

§ 230

sister's husband should take care of him for life, and that as compensation for such service they should receive $75 a month, such amount having been accepted by them, was, under the Transfer Tax Law, assessable against them at the rate of 5 per cent., as in the event of the death of her sister, her husband (brother-in-law of the decedent) would be entitled to the whole compensation. Matter of Eaton, 55 Misc. 417, 106 N. Y. S. 682.

525. When the Value of Each Interest Should Be Determined and the Tax Assessed against Such Beneficiary Individually.

Where a decedent left an estate of about $6,000 and bequeathed legacies of $500 to several brothers and sisters and then directed that the sum of $2,500 should be held in trust to pay the income semiannually to a certain sister, and upon the sister's death the $2,500 was to be given in stated amounts to various collateral relatives, the appraiser found the value of the sister's life estate in the $2,500 and reported the balance as taxable against the executor and trustee for the benefit of the 5 per cent. class. Before entering the order taxing the transfers to the 5-per cent. class, Surrogate Beckett referred the report back to the appraiser directing that the appraiser should find, in the manner prescribed by section 230 of the Tax Law, the present value of the bequests to be paid to the beneficiaries upon the death of decedent's sister; that the only taxable interests are the legacies specifically bequeathed to beneficiaries of the 5-per cent. class, and these bequests should be taxed against the beneficiaries individually. Matter of Copeland, N. Y. Law Journal, June 20, 1908.

§ 230

When Tax Assessed against Executors.

526. When Tax on Conditional Transfers Should Be Assessed against the Executors.

Decedent died October 18, 1901, leaving a will and codicil. By the fourth clause of the will he bequeathed certain securities to several collateral relatives, and by the first clause of his codicil he authorized his executors to rebuild, alter, or improve certain real estate and directed that the cost thereof be defrayed out of the proceeds of sale of the securities bequeathed to the collaterals as aforesaid, "notwithstanding the bequest of such property contained in my will." The codicil also provided that the bequest of the said securities was not to become payable until five years after testator's death and that meanwhile the income should be paid to his daughter, until such alterations or improvements should be completed. The taxing order determined the interest of the various legatees and assessed a tax against each one's interest respectively, and an appeal was taken by the legatees on the ground that the tax on their interests may be impaired or entirely extinguished by the exercise of the discretion lodged in the executors by the codicil. The surrogate held that the assessment of tax should not have been made against the conditional transferees individually. Matter of Eldred, N. Y. Law Journal, July 21, 1903, Surrogate Fitzgerald.

527. When Tax on Contingent Interests to Be Assessed against the Trustee.

Where the value of certain contingent remainder interests to four charitable and hospital corporations in a trust fund has been determined by the appraiser, and an order has been entered assessing the tax directly against each corporation respectively, the order

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