When notes of legatees are forgiven by will and are shown to be valueless no tax is assessable. Matter of Daly, 100 App. Div. 373; 91 Supp. 858; aff. 182 N. Y. 524; 74 N. E. 1116. Advancements paid by will where the heir gets nothing held: no tax. Succession of Fallon, 144 La. 299; 80 So. 544. Payment of a debt by the exercise of a power of appointment is taxable if the creditors accept it. Matter of Rogers, 71 App. Div. 461; 75 Supp. 835; aff. 172 N. Y. 617; 64 N. E. Matter of Slosson, 87 Misc. 517; 149 Supp. 797; affirmed as to this point 216 And where the testator agreed to leave all the property to the beneficiary in return for support for life, and did so, the devise was held taxable. Carter v. Craig, 77 N. H. 200; 90 Atl. 598. Decedent, by oral gift, made over his real estate to the beneficiary in return for support and services. Under the laws of Iowa title to lands may be vested by oral transfer, followed by possession. Decedent made a will devising the same lands to the donee of the gift. Held, that he took under the gift and not under the will, therefore there was no transfer by will and hence no tax. Choate, 195 Ia. 715; 192 N. W. 857. 5. As affected by statute. The New York statute regulating transfers by will is Article 2 of the Decedent's Estate Law, Chapter 18, L. 1909, sections 10 to 47. Some of the States require three witnesses to pass real estate; and questions may arise in tax proceedings as to the validity of trusts. Generally the courts seek to avoid constructions which will create an intestacy, and the presumption is that the testator intended to dispose of his entire estate. Dreyer v. Reisman, 136 App. Div. 796. B.-TRANSFERS BY INTESTATE LAW. All of the states have statutes of descent regulating the devolution of the property domiciled within their jurisdiction and such devolution is taxed by all the inheritance tax statutes. Even where the personal property of a non-resident within the state is taxed, that tax must be based upon the devolution under the laws of the state of domicile. In New York these are regulated by Article 3 of the Decedent Estate Law, and by statute in all the States. "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. 220; 79 Supp. 382. 1. Devolution of real estate. A child en ventre sa mere is in being for purposes of descent. Rockwell v. Gregory, 4 Hun, 606. A will is not revoked by the advent of an after-born child of testator, but the child as heir is put to his or her special statutory action under this section and only the Supreme Court may determine whether or not the action will lie. Matter of Sauer, 89 Misc. 105; 151 Supp. 465. Lineal descendants include an illegitimate child whose parents subsequently married. Miller v. Miller, 91 N. Y. 315. Where brothers and sisters have a reversionary interest it vests. at the death of the intestate and is not affected by the intervening life estate of their mother. Barber v. Brundage, 50 App. Div. 123; 63 Supp. 347; aff. 169 N. Y. 368. In the absence of statute great uncles inherit to the exclusion or great aunts. Hunt v. Kingston, 3 Misc. 309; 23 Supp. 352. Where intestate conveyed to his mother property he had received by descent from his father, and she afterwards willed it to him, it was held that the land was received on the part of the mother and went to those of her blood. Adams v. Anderson, 23 Misc. 705; 53 Supp. 141. Real estate received from the mother goes to cousins on the maternal side to the exclusion of collaterals on the side of the father. Matter of McMillan, 126 App. Div. 155; 110 Supp. 622. But where the real estate did not come from either father or mother the collaterals on both sides are entitled to share. Matter of Peck, 53 Misc. 535; 109 Supp. 1083. b. AS TO PERSONAL PROPERTY. Lineal consanguinity is reckoned by counting each step, up or down, from the deceased; collateral consanguinity by counting the steps from the intestate to the common ancestor, then down to the collateral beneficiary. Matter of Marsh, 5 Misc. 428; 26 Supp. 718. Three nephews and the child of a deceased nephew share equally, each one-fourth. Matter of Prote, 54 Misc. 495; 104 Supp. 301. In all such cases the nephews and nieces and the children of deceased nephews and nieces take per stirpes. Matter of Fleming, 48 Misc. 589; 98 Supp. 306. And generally, where there are unequal degrees, the beneficiaries take per stripes. Dwight v. Gibb, 150 App. Div. 573; 135 Supp. 431. Brothers and sisters and their lineal descendants to the most remote degree are preferred to other kindred not in closer blood relationship; so held, preferring great grand-nieces over first cousins. Matter of Butterfield, 161 App. Div. 506; 146 Supp. 671; aff. 211 N. Y. 395. Prior to 1898 subdivision 12 of section 2732 of the N. Y. Code, now section 98 of the N. Y. Decedent's Estate Law, read: "No representation shall be admitted among collaterals after brothers' and sisters' children.' In 1898 said subdivision was amended to read: "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 share of the personal estate. Matter of Ebbets, 43 Misc. 575; 89 Supp. 544. Matter of McGovern, N. Y. L. J., March 26, 1903; distinguishing. Matter of Davenport, 172 N. Y. 454. Matter of Hadley, 43 Misc. 579; 89 Supp. 545. Matter of Rowe, 103 Misc. 111, 170 Supp. 472. Subdivision 12 of section 98 was further amended by chapter 539 of the Laws of 1905 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." And it now reads: "Prior to May 18, 1905." In the Matter of Nichols, 60 Misc. 299, 113 N. Y. Supp. 277, 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. "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 it was held in the Matter of Barry, 62 Misc. 456, that where an intestate leaves no nearer kin than cousins and descendants of deceased cousins, the cousins take under subdi vision 12, section 98, to the exclusion of the descendants of deceased cousins. Nephews and grandnephews take per stirpes. Matter of De Voe, 107 App. Div. 245; 94 Supp. 1129. Where the surviving next of kin are first cousins and the children of deceased first cousins, under subdivision 12 the first cousins are entitled to the personal estate to the exclusion of such children. Adee v. Campbell, 79 N. Y. 52. C.-POWERS OF APPOINTMENT. Though sometimes occurring under deeds of trust these powers are generally found in wills and are delegations by the testator to some living person of the power to exercise a choice among beneficiaries which power such living person may never in fact exercise. This complication has provided the courts with some very puzzling questions and has led to statutory provisions which sometimes tax the transfer in the estate of the donor of the power while others attempted to tax the transfer at the time of the exercise of the power by the donee thereof. 1. The common law rule. It was the original theory of the law as to such transfers that the exercise of a power of appointment was in legal effect merely the writing into the blank left by the will of the testator the names of the appointees. As many life tenants held powers of appointment under wills probated before any inheritance tax statutes had been enacted many courts applied the principle that the tax was on the transfer and could not affect transfers consummated prior to its enactment. Emmons v. Shaw, 171 Mass. 410; 50 N. E. 1033. A general power of appointment vests no estate in the donee of the power. United States v. Field, 255 U. S. 257; 41 S. Ct. Rep. 256. So in Kentucky it was held that a contract related back to the original will. The testator devised all his property to his mother |