The surplus only was

necessary, for their payment. liable to the tax. It is to be assessed not upon the pecuniary value of the land coming to the tenant in remainder, but upon the clear value of the estate passing from the person who may die seized thereof, and the probable duration of the preceding lifeestate."1

3. Life-estates, annuities, legacies and terms of years-Under the New York statute, where the taxable interest shall be a life-estate, or term of years, the entire property or fund by which such estate or interest is supported or of which it is a part, shall be appraised, immediately after the death of the decedent, at what was its fair and clear market value at that time, and the statute further provides that the value of every future or contingent or limited estate, income or interest, shall be determined by the standard of mortality and of value employed by the Superintendent of the Insurance Department in ascertaining the value of policies of life insurance and annuities. Such superintendent shall, on the application of any surrogate, determine the value of such future or contingent or limited estate, income or interest upon the facts contained in the appraiser's report, and certify the same to the surrogate, and his certificate1 shall be conclusive evidence that the method of

2 Constitutional rules considered with reference to the valuation of life-estates, &c. See Williams' Case, 3 Bland's Ch. 186

227.

3

Appendix, secs. 2, 13; and see Matter of Robertson, 5 Dem.

4 See Appendix, Forms.

computation adopted therein is correct. The State is thus afforded a standard and uniform method under this statute in appraising estates liable to taxation.

In Connecticut1 the value of annuities and lifeestates is to be determined by the actuaries' combined experience tables, and five per centum compound interest.

In Maryland, where there are annuities, lifeestates, or remainders liable to the tax, the orphan's court is given power to determine, in its discretion, at such time as it thinks proper, the proportion of the tax a party shall pay, and its judgment is final and conclusive, but it would seem that this means only as to the valuation and not as to any question of liability to the tax.s

In Pennsylvania' the appraisement of life-estates, annuities and terms of years is made by the official appraiser appointed by the register of wills, and he is required to make a fair and conscionable appraisement of such estates."

But no system or rule for the purpose of ascertaining the value of such estates exists in that State, and the question seems to be left entirely to the discretion of the register of wills. Generally, however,

Tyson v. St. 54 Md. 577.

4 Statute, Appendix, sec. 12. Appraiser's duties defined with reference to life estates and annuities, Kaas's Est. 45 Leg. Int. 217. Wharton's Est. 10 W. N. C. 106; Goldstein's Est. 16 Phila. 317; Kaas's Est. supra; Com's. App. (Cooper's Est.), 127 Pa. St.

the Carlisle tables are adopted as the basis of valution.'

Where testatrix bequeathed a specific sum in trust to invest and after deducting all proper costs and charges thereon to pay the interest and income thereof to her niece for life, such a bequest pre-supposes a deduction of the expenses of the trust, the commissions of the trustees, and other charges which may lawfully be incurred, thus diminishing the amount to be paid the cestui qué trust annually. These expenses are to be considered upon testimony to be submitted to the appraiser by the executor or life-tenant in arriving at a fair and conscionable appraisement of the cash value of the annuity, and it is then for the appraiser to determine the probable net income of the bequest that the tax may be imposed thereon; and though by the terms of the will it may become necessary to deplete the principal of the fund, to pay life-annuities, making it impossible to deter mine the present cash value of the annuities, that fact is immaterial as regards the question of appraisement as the property is to be taken at its "clear market value" at the testator's death.3

Where an estate for life is left to husband and wife as tenants by the entirety and the wife is not exempt by statute, her interest being certain and definite and made assignable by law and subject to

1 Goldstein's Est. 16 Phila. 319; Kaas's Est. 45 Leg. Int. 217. 2 Kaas's Est., and cases cited, supra.

3 Matter of Leavitt, 4 N. Y. Supp. 179; 22 N. Y. St. Rep. 81; Matter of Johnson, 6 Dem. 146; Est of Bird, N. Y. Law Jour. July 31, 1890; but see Matter of Clark, 1 Con. Surr. Rep. 431.

partition,' is liable to assessment and taxation during the life-time of the husband.2

Where there are contingent annuities an ap praisement thereof will be allowed upon decedent's death, if the value of such annuities can then be ascertained, otherwise they may be appraised and taxed when the contingency occurs.5

By the New York statute it is provided that where the legacy may be valued at less than $500, it is exempt. Under this clause of the statute it has been held that a cash legacy of $500, which is not payable at decedent's death, is exempt from the tax upon the ground that as the executor has a year in which to pay such legacy its value at the time it comes to the legatee is less than $500. If this rule. is to be sustained as the correct interpretation of the statute, all legacies of this amount will escape taxation unless made payable by the terms of the will immediately upon decedent's death.

The conclusion seems to be not only against the

1 L. N. Y. 1880, ch. 472.

2 Est. of Higgins, N. Y. Law Jour. Dec. 7, 1889, distinguishing Matter of LeFever, 6 Dem. 154; Matter of Hopkins, 6 Dem. 1; but see O'Connor v. McMahon, 54 Hun, 66. See, also, as to tenants by the entirety, Stetz v. Schreck, 32 N. Y. St. Rep. 133; Beach v. Hollister, 3 Hun, 519.

3 See sec. 4, post.

4 Matter of Clark, 1 Con. Surr. Rep. 431.

5 See Matter of Stewart, 30 N. Y. St. Rep. 938; Matter of Benjamin, N.Y. Daily Reg. Dec. 7, 1889; Matter of LeFever, 5 Dem. 184; Matter of Hopkins, 6 Id. 1; see Chapter VI, sec. 3 (c); Matter of Cager, 111 N. Y. 343.

Appendix, sec. 1.

7 Matter of Peck, 30 N. Y. St. Rep. 209; citing Thorne v. Garner, 113 N. Y. 198.

general practice of many of the surrogate courts heretofore to tax such legacies at their face value,1 but also against the provision of the statute requiring property to be appraised at its fair market value, not at the time it is delivered or paid to the legatee but at decedent's death when it passes to and becomes the property of the legatee.

Moreover, unless the legatee make an actual sale of the legacy before it becomes payable, for less than its face value he will receive the full amount without deduction. A result contrary to that announced in the Matter of Peck' has recently been reached by the Surrogate of New York county.

After considering at length the different provisions of the statute bearing upon the subject, he concludes: "Thus we have seen that the legislature plainly distinguished between a moneyed legacy and one of other property, and find authority for the construction which has been given to this act by me in several cases heretofore-that a moneyed legacy need not be appraised. In fact the meaning of the act itself is an appraisement by the legislature of a moneyed legacy at its face value at the date of decedent's death. Legacies of property not in money are to be appraised at their fair, clear market value as of the date of decedent's death, not as of one year thereafter when the legacy is payable and its delivery may be enforced. It is said that the fair, clear market

1 Matter of Pond, N. Y. Daily Reg. May 25, 1889; Est. of Bird, N. Y. Law Jour. July 28, 1890.

2 Supra.

3 Est. of Bird, N. Y. Law Jour. July 28, 1890; Est. of McGowan, Id. July 30, 1890.