In New York the Appellate Division took another view and held that where the life tenant died shortly after the testator the actual duration of life should be the measure of value; but this decision was reversed by the Court of Appeals in: Matter of White, 208 N. Y. 64; 101 N. E. 793. The court says, at page 68: "The rule promulgated by the legislature effects certainty and uniformity which the principle adopted by the Appellate Division would tend to destroy while in this case the rule works to the advantage of the state, inasmuch as the remainder passes to a religious corporation which is exempt from the tax, such manifestly is not its necessary or uniform result and it is not subject to criticism as harsh or unjust. Where there was a power to invade the principle the Surrogate deducted the actual and not the theoretical value of the life interest. The question has not since been raised but the authority is weakened if not overruled by the subsequent cases. Matter of Hall, 36 Misc. 618; 73 Supp. 1124. 3. Remainders. The immediate taxation and valuation of a life estate is simple and apparently equitable, as far as any tax on the principal of a fund can be so regarded. The immediate taxation of remainder interests is neither as simple nor as equitable. As it reduces the fund the life tenant must suffer while to make the remainderman pay for benefit he may never live to enjoy also seems unjust. Many states give the remainderman an election to pay at once or file a bond to pay when the remainder accrues. This is more simple and does not deplete the fund but it is a hardship on the remainderman and works to the disadvantage of the state. The collection of the tax is postponed for a generation. The expense of watching bondsmen and beneficiaries is great, the amount of labor burdensome and the financial results not commensurate. This has led many important states to require the immediate taxation of all remainders at the highest possible rate, to be paid out of the principal fund. a. THE LAW IN FORCE AT DEATH OF TESTATOR GOVERNS. It is the statute in force at the death of the testator and not that in force at the date of the death of the life tenant which governs the taxation of remainders. If taxation has been suspended for any reason this rule often brings the case under obsolete provisions and antiquated authorities. State ex rel. Basting v. Probate Court, 132 Minn. 104; 155 N. W. 1077. Matter of Mason, 120 App. Div. 738; 105 Supp. 667; aff. 189 N. Y. 556; 82 N. E. 1129. Matter of Roosevelt, 143 N. Y. 120; 38 N. E. 281. b. VESTED REMAINDERS NOT TAXABLE WHEN TESTATOR DIED BEFORE THE STATUTE. Remainders that vested prior to the statute are not taxable at the death of the life tenant and a statute declaring them so is unconstitutional. Matter of Pell, 171 N. Y. 48; 63 N. E. 789. Matter of O'Berry, 179 N. Y. 285; 72 N. E. 109. An this is so even though the remainder be defeasible. Matter of Smith, 150 App. Div. 805; 135 Supp. 240. Matter of Hitchins, 43 Misc. 485; 89 Supp. 472; aff. 181 N. Y. 553; 74 N. E. 1118. The court said in the Hitchins case at page 493: "Where a vested though defeasible interest in remainder passes under a will to a remainderman on the testator's death, though the possession does not pass until the death of the life tenant, the transfer or succession is referred to the time of the death of the testator, and if that occurred prior to the enactment of the act taxing transfers of property, the remainder is not taxable." Matter of Seaman, 147 N. Y. 69; 41 N. E. 401. c. TAXATION POSTPONED UNTIL REMAINDERMAN GETS Pos SESSION. It was formerly the rule in New York and still is in many states to postpone the taxation of the remainder until the expiration of the intermediate estate. McLemore v. Raines' Estate, 131 Tenn. 637; 176 S. W. 109. Matter of Hoffman, 143 N. Y. 327; 38 N. E. 311. d. PRESENTLY TAXABLE. By Chapter 76, L. 1899. the rule was changed in New York providing for the present taxation at the highest possible rate of all contingent remainders with a refund in case a lower rate ultimately proves fo be due. This statute has been copied in many states and is held constitutional. Matter of Vanderbilt, 172 N. Y. 69; 64 N. E. 782. Matter of Brez, 172 N. Y. 609; 64 N. E. 958. Matter of Kennedy, 93 App. Div. 27; 86 Supp. 1024. The taxation is against the trustees who take the legal title. Order of Surrogate affirmed without opinion. Matter of Guggenheim, 189 N. Y. 561; 82 N. E. 1127. But where the person to whom the contingent remainder might pass was uncertain the courts still suspended taxation until the uncertainty was removed. Matter of Zborowski, 84 Misc. 342; 145 Supp. 1101; revd. 213 N. Y. 109. Matter of Granfield, 79 Misc. 374; 140 Supp. 922. State ex rel. Basting v. Probate Court, 101 Minn. 485; 112 N. W. 878. Same Case, 132 Minn. 104; 155 N. W. 1077. e. WHEN BENEFICIARY IS UNCERTAIN. It was held by the N. Y. Court of Appeals in Matter of Zborowski, supra, that even when the ultimate beneficiary was uncertain the remainder was taxable at the highest possible rate. The decedent gave her residuary estate in trust to pay the income to her son Louis until he attained the age of 21 years, but if he did not live to be 21 then to his issue, if any, and in default of issue, to persons taxable at 5 per cent rate. Under the ruling of the Zborowski decision the tax was imposed at the 5 per cent rate against the trustee for the 5 per cent class. In discussing the legislative policy in adopting this provision the court said: "The different statutes hereinbefore referred to contain evidence of a constant effort of the legislature to enlarge the class of transfers immediately taxable upon the death of the transferror. The question of the legislature's power in that regard was set at rest by the decision of this court in Matter of Vanderbií. In one aspect it may be unjust to the life tenant to tax at once the transfer, both of the life estate and of the remainder though contingent, and it may seem unwise for the state to collect taxes which it may have to refund with interest, but those considerations are solely for the legislature, who are to judge whether they are more than offset by the greater certainty which the state thus has of receiving the tax ultimately its due under the statute. However unwise or unjust it may seem in a particular case like this for the state to collect the tax at the highest rate when in all probability the remainder will vest in a class taxable at the lowest rate, it is the duty of this court to give effect to the statute as it is written." To the same effect is: Matter of Shearson, 174 App. Div. 866; affd. 220 N. Y. mem. A similar statute has been construed in like manner by the court of Illinois. Ayres v. Chicago Title & Trust Co., 187 Ill. 42; 58 N. E. 318. When the remainder interest belongs to a decedent while the life tenant still survives it is none the less presently taxable as in Matter of Huber, 86 App. Div. 458, 461; 83 Supp. 769, where the will read: "The interest which I may have in the estate of my deceased father which interest is now subject to the life estate of my mother." Under the circumstances the value of the life estate of the mother at the death of the remainderman is valued and deducted from the fund, the balance being presently taxable. So where a remainderman had an estate in a trust fund subject to the life use of a brother the lower courts were reversed and the matter remitted to the Surrogate on this theory. The remainder interest belonged to a non-resident. The surrogate erroneously suspended taxation until the death of the life tenant. Meantime the statute taxing transfers of non-resident property was repealed; but the court held that the remainder interest, being presently taxable, the repealing act did not avoid the tax. Matter of Wright, 214 N. Y. 714; 108 N. E. 1112. There was apparently an exception where the life estate was defeasible by re-marriage because it is impossible to value the life estate by the use of the mortality tables. While the probability of death may be estimated from these tables, there are no statistics available from which the probability of remarriage may even be conjectured, Herold v. Shanley, 146 Fed. 20; 76 C. C. A. 478. New York, and most of the other state statutes, meet this difficulty by providing that the life estate shall be assessed without regard to the possibilty of its being divested. This is regarded as fair to the life tenant |