(SnrnFll Ham ^rl^nol ICihraty Cornell University Library KFN5894.A34M14 3 1924 022 874 634 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022874634 THE TRANSFER TAX LAW OF THE STATE OF NEW YORK ARTICLE X OF CHAPTER XXIV OF THE GENERAL LAWS AS ENACTED BY CHAPTER 908, LAWS OF 1896, WITH THE AMENDMENTS THERETO, AND AS AMENDED AND RE-ENACTED CHAPTER 368 OF THE LAWS OF 1905 IN EFFECT JUNE 1st, 1905 WITH ANNOXA.TIONS AND RBKERKNCES TOGETHER WITH A TABLE OF CASES AND FORMS BY GEORGE w. Mcelroy OF THE ORANGE COUNTY. BAH ASSISTANT CHIEF CLERX IN THE TRANSFER TAX BUREAU, STATE COMFTROIXEh's OFFICE, ALBANY, N. Y. ALBANY, N. Y. MATTHEW BENDER AND COMPANY 1905 Copyright, 190S, Br MATTHEW BENDER AND COMPANY INTRODUCTORY. On the 10th of June, 1885, an act to tax gifts, lega- cies, and collateral inheritances in certain cases was passed in this State. This original act did not take effect until June 30, 1885 — the twentieth day after its final passage. Matter of Howe, 112 N. Y, 100. The scope of this act was extended from time to time until, in 1892, it was repealed, substantially re-enacted, and continued by chapter 399 of the Laws of that year, passed April 30th, entitled "An act in relation to tax- able transfers of property." This act was, by Gen- eral Laws (chap. 24), being chapter 908 of the Laws of 1896, repealed and substantially re-enacted as ar- ticle 10 of the Tax Law, which article, as amended and construed from time to time, constituted the law of taxable transfers in this State until 1905. The Act of 1905, in effect June 1st of that year, does not repeal chapter 908, Laws 1896, but substan- tially re-enacts the provisions of said act as thereto- fore amended, making, however, certain amendments which were deemed expedient for the better enforce- ment of the provisions of this law, and specifically exempting transfers to educational, charitable, mis- sionary, benevolent, hospital, or infirmary corpora- tions, equally with a bishop or religious corporation, who have been so exempted since 1892. [iii] IV INTRODUCTORY. The law of 1892 took effect May 1, 1892. Matter of Milne, 76 Hun, 328; Matter of Fayerweather, 143 N. Y. 114. Section 22 of that act defined the words " estate " and " property " as meaning the property or interest of the decedent, and not the property or interest transferred to the individual beneficiary, and the Court of Appeals, in the Matter of Hoffman, 143 N. Y. 327, held that under this act it was the aggre- gate amount of the estate passing to taxable persons, and not the share of each individual legatee, which would determine thereafter whether the taxable limi- tation had been equaled or exceeded, thus changing the basis upon which estates prior to this act had been held taxable or exempt. The Act of 1896 did not take effect until June 15th of that year. Matter of Sloane, 154 N. Y. 109, By reason of combining the Transfer Tax Law with the Greneral Tax Laws, and in view of the language of section 220, taxing only transfers to persons or cor- porations " not exempt by law from taxation," mu- nicipal corporations, mentioned in subdivision 3 of section 4 of chapter 908, Laws of 1896, and the cor- porations and associations mentioned in subdivision 7 of said section 4, claimed and received exemjytions from the provisions of the Transfer Tax Law {Matter of Thrall, 157 N. Y. 46) until section 243 was added to the Tax Law by chapter 382, Laws of 1900, in effect April 11th of that year. Matter of Watson, 171 N. Y. 256. These former successive laws have been held to be INTEODUCTOKY. V a continuation one of the other. Matter of Prime, 136 N. Y. 347. So that the reference in the existing act to " this act " and " this article " apply to and in- clude the original and each successive act. Matter of Embury, 20 Misc. Rep. 75, 45 N. Y. S. 821. The Act of 1891 did not operate to prevent a subse- quent assessment and collection of a tax on the estate of a decedent who dies intermediate the Act of 1887 and the Act of 1891 {Matter of Prime, 136 N. Y. 347) ; nor did the change made in the act by the passage of chapter 908 of the Laws of 1896 prevent the assess- ment and collection of a transfer tax against the estate of a party dying on December 9, 1895. Matter of Brundage, 31 App. Div. 348, 52 N. Y. S. 362. The particular law of taxable transfers in force at the time of the testator's death is generally the one which governs in the determination and fixing of the tax. Matter of Milne, 76 Hun, 328, 27 N. Y. S. 727; Matter of Roosevelt, 143 N. Y. 120. But where an estate is actually in the process of settlement, it is competent for the State to impose a tax upon prop- erty in the estate not taxable at the time of the pro- bate of the will. The State has general power to fix the time at which the right of succession should be taxed, and to define what shall be a transfer, within the meaning of the statute, so long as such definition does not involve a violation of either contract or vested rights. The original act did not constitute a contract between the State and a person living at the time of its enactment, that if he should die while the VI INTBODUCTOBY. law was in full operation, and unchanged, he might dispose of his estate without the imposition of any further tax upon any rights or interests acquired under his will than the tax imposed by that law. Mat- ter of Vanderbilt, 50 App. Div. 246, 63 N. Y. S. 1079; affd., 163 N. y. 597; followed. Matter of Vanderbilt, 58 App. Div. 619, 68 N. Y. S. 1150; affd., 166 N. Y. 640. author's preface. While the Inheritance and Transfer Tax Law has been referred to as a tax upon the estates of the dead, and has received more or less criticism from those who were particularly affected by its provisions, yet, after the lapse of twenty years, it is generally con- sidered a fair and reasonable method of providing, in part, for the support of Government, and it is un- doubtedly the least burdensome of any of the methods of taxation which contribute to that end. It is safe to predict that no system of taxation will ever be welcomed, but it would seem that a tax im- posed upon the succession to property which a bene- ficiary has not contributed to produce, or even to keep safely while it was accumulating, should not be grudgingly paid, when we consider the sovereign right of the State, in providing for the support of Govern- ment, to lawfully impose a tax upon one's home, his business, or even his annual earnings. The present Transfer Tax Law is the result of niunerous amendments enlarging not only the class of taxable persons, but also the property included in the transfer, until in 1891 the taxable transfers in- cluded transfers to lineals as well as collaterals, and since 1903 has included the transfers of real as well rvii] viii author's preface. as personal property to both classes of taxable per- sons. The amendments by chapter 368 of the Laws of 1905, reference to which is hereinafter made at the end of each section, respectively, do not enlarge or change materially the provisions of the Transfer Tax Law in force during the past six years, but certain pro- visions which have become inoperative, either by amendment since their enactment, or by decisions of the courts, have been omitted, and the material pro- visions, wherever necessary, have been arranged con- secutively and under appropriate headings, or as sepa- rate paragraphs, so that it is possible now to find any particular provision from the context of each section, without reading the whole section through. The author has endeavored to place in a concise form the law relating to the provisions embraced in each section, so that, in referring to any particular provision or section, the whole law relating thereto will be found immediately following. The provisions of several of the sections of the law are discussed under separate chapters, whenever it has appeared that the subject-matter was of sufficient importance to call for such treatment, and reference should therefore first be made to the Table of Contents, immediately following, in order to more fully understand the scope and plan of the work. The number of nonresident appraisals have greatly increased since 1902, when the statute imposed a pen- alty upon all banks, stock companies, or other deposi- IX tories who permitted the stocks or other property of nonresident decedents under their control to be turned over to the representatives of the estate, without first obtaining the consent of the State Comptroller, and Chapter VII relates wholly to the proceedings in cases of nonresident decedents. Considerable of the text in the leading cases, in respect to the taxation of trans- fers made by this class of decedents, is given in this chapter in order that the nonresident practitioner, who possibly may not have access to the New York Reports, may more readily understand the liability of the estate he represents to taxation under our laws. Finally, — This work is the result of the author's personal daily attention to transfer tax matters dur- ing the past four years, as assistant chief clerk in the Transfer Tax Bureau of the State Comptroller's office, and notations made from time to time during that period. It is placed in the hands of the publishers, not altogether as a treatise upon the subject, but as a reference book, containing the statutes and decisions arranged in such a manner that the practitioner who only occasionally refers to this branch of the law may find the information he desires as readily as one who has been enabled to give considerable time and atten- tion to the subject-matter embraced herein. I am confident that an examination of the work will commend it to those having occasion to refer to this branch of the law. Albany, N. Y., July, 1905. Geobge W. McBleoy. TABLE OF CONTENTS. CHAPTER I. Relating to the Tbansfee Tax Law^. PAGE. Pab. 1. The tax is upon the right of succession under a will, or devolution in case of intestacy 1 2. The law is constitutional 2 3. Provisions of the act declared constitutional 3 4. Constitutionality of chapter 41, Laws 1903 5 5. Unconstitutional provision 11 6. The value of the whole estate transferred to taxable persons, determines the liability of each transfer to taxation 13 7. The nature of the tax 16 8. Procedure; what statute governs 16 9. Amendments are not retroactive unless stated to be. . 17 10. Corresponding sections of former acts relating to tax- able transfers 19 11. Amendments by chapter 368, Laws of 1905 21 CHAPTER II. The Genebal Subject — Continued. Pab. 12. Meaning of the word " transfer " 23 13. When the transfer takes place 24 14. When tax attaches to legacy 25 15. Tax will attach upon the devolution of title 26 16. Transfer of title; time of 26 17. When legal and equitable title vests 26 18. Amount of tax; how measured 26 19. Meaning of provision "when person becomes bene- ficially entitled," etc 26 20. Meaning of the word " estate" prior to Act of 1892. . 27 21. To what the word " deed " refers to in this act 27 22. The term " intestate laws " 28 23. Intestate law; distribution among collaterals 28 24. Equitable conversion; could not be invoked 29 (xi) Xll TABLE OP CONTENTS. PAGE. Pae. 25. Where legatee dies before conversion takes place 29 26. Renunciation of legacy; tax is then upon the ultimate devolution 30 CHAPTER III. Taxabu: Transfers — Pkopebtt and Interests Taxable. Par. 27. Taxable transfers 34 28. The vcord " property " is not limited to the definition thereof under the General Tax Law 36 29. " Personal property " as defined by the Statutory Con- struction Law 37 30. What shall be deemed assets of the estate 37 31. When person becomes "beneficially entitled/' etc 38 32. Money deposited in bank to pay debt owing to a non- resident decedent , 38 33. Personal property wherever situated is taxable 38 34. When administered upon without the State 39 35. Residence of beneficiary not material 39 36. Note of legatee, included in bequest of residuary estate 39 37. Judgment in favor of decedent against heir or legatee 39 38. Land devised subject to a mortgage 39 39. Debts due from a, legatee 40 40. Interest of decedent in surplus fund in partition suit. 40 41. Bequest for masses 40 42. Good-will of business 41 43. Legatee dying before receiving his legacy; when same is taxable , 41 44. Annuity to an executor and trustee is taxable 42 45. Insurance policy payable to decedent's executors, etc. 42 46. Shares of stock in joint-stock association 43 47. Stocks of foreign corporations 43 48. A bequest to the United States is taxable 43 49. Agreement between partners does not create joint tenancy 43 50. Legacy in payment of debt for services 44 51. Legacy to widow in lieu of dower is taxable 44 52. Seat or membership in New York Stock Exchange. . . 45 53. United States bonds prior to Act of 1892 and after March 21, 1898 45 TABLE OF CONTENTS. XIU PAGE. Pak. 54. stock pledged as collateral to loan; redeemed is tax- able 46 55. Legacy absolute in terms ; although shown by extrinsic proof to be imposed with a trust 46 56. When a taxable bequest will be deemed created; law phrases unnecessary 46 57. Debts owing by resident to nonresident decedent. ... 47 58. Deposit with trust company although certificates therefor are held without this State 47 59. Deposits with banker to protect a margin 48 60. Profits, when taxable 48 ■ 61. Leasehold interests in land 48 62. Money loaned is not an advancement 48 63. Fund held for grantor's life, reserving power to dis- pose of same by will 49 64. Savings banks deposits; in trust, etc 49 65. Id.; joint accounts; husband and wife 50 66. Id.; where "cither or the survivor may draw " 51 67. Id. ; " mother or daughter " 52 68. Promissory note payable to husband and wife 53 69. Bond and mortgage; held by husband and wife jointly 54 70. Taxability of an estate; what law determines 55 71. Legacy in lieu of dower is not a debt of the estate. . . 56 CHAPTER IV. Tayabu! Teansfers — Peopeett and Interests Not Taxable. (I 220, Tax Law.) Pab. 72. Accrued rights; prior to Transfer Tax Law 57 73. Estates vested, prior to the Transfer Tax Law 58 74. Increase accruing after decedent's death 58 75. Bequest for burial plot 58 76. Interest or share of a decedent in an undistributed estate 58 77. Legacy to executors subject to a trust 58 78. Legacy; given in consideration of a home 59 79. Absolute bequest with precatory words in favor of ex- empt corporations 59 80. United States bonds between May 1, 1892, and March 21, 1898 60 81. Stocks pledged as collateral to a loan 60 XIV TABLE OF CONTENTS. PAGE. Pab. 82. Legacy to a brother chargeable on land 61 83. Articles mentioned in section 2713 of the Code 61 84. Proceeds of gratuity fund of New York Produce Ex- change 61 85. Fund provided by will to pay annuity created by trust company 62 86. Real property without this State not taxable 62 87. Legacy to be taxable must be paid from property of decedent 63 88. Legacy to a corporation not in existence 63 89. Legacy is a naked right until reduced to possession. . 64 90. Transfer of property by antenuptial agreement 64 91. Property transferred by reason of contract obliga- tions, held not taxable 65 92. Advancements 66 93. Remainders and reversions under the earlier law 66 94. Chose in action; when taxable 66 95. Is the widow's dower taxable 1 67 96. Curtesy 68 CHAPTER V. Taxable Transfebs — In Contempiation of Death, ob to Take Effect at ob Aftee Death. (§ 220, Tax Law.) Pab. 97. The general subject 69 98. Gifts made in contemplation of the death of the donor, etc 70 99. Distinction between gifts inter vivos and causa mortis 70 100. Literal construction of the statute not intended.... 71 101. Transfers; made in contemplation of death 73 102. To what the words " in contemplation of death " refer 74 103. Transfers not made in contemplation of death of donor 74 104. Transfers taking effect at or after donor's death 77 105. ^Vhen a trust deed does not constitute an absolute gift 77 106. Gift where donee only survived the donor three days 80 107. Gifts upon conditions or agreement 80 108. Transfer not made to take effect at or after donor's death 82 TABLE OF CONTENTS. XV PAGE. Pab. 109. Vested interest, although will contains no words of present gifts 86 110. Gift; agreement to care for donor for life 87 CHAPTER VI. Taxable Tbansfers — Poweb of Appointment. (§ 220, Tax Law.) Pab. 111. Effect of general power of appointment 89 112. Transfers, by the exercise of 90 113. Object and purpose of the statute 90 114. Powers created by will 91 115. Powers created by deed 94 115a. Appointee can elect to take under the exercise of the power, or under the former will or deed 95 116. Time of payment is when the power of appointment is exercised 96 117. Erroneous payment cannot be considered a payment made " in advance " 99 118. When the power is deemed to have been exercised. . 101 119. Taxability of transfers^ where funds over which power is exercised are without this State 108 120. When remaindermen not bound by acts of life tenant; failing to exercise power 109 121. When tax on transfers under a power will be paid from the donee's residuary estate 110 122. Failure to exercise power, equitable conversion Ill l!i3. When grantee, with power to dispose, is entitled to an absolute fee 112 124. Decisions affecting transfers upon the exercise of power of appointment 112 125. Decisions prior to the amendment of 1897 117 CHAPTER VII. Taxabie Tbansfebs — Succession Tax Upon the Tbansfeb op Pbopebty. Nonresident Decedents. "When the transfer is by will or intestate law, of property within the State, and the decedent was a nonresident of the State at the time of his death." Subdivision 2, section 220, supra. (§ 220, Tax Law.) Pab. 126. Constitutionality of the act , 120 127. History of the law 121 XVI TABLE OF CONTENTS. PAGE. Pab. 128. Personal property of nonresidents not removed until after 1892 123 129. Jurisdiction of the surrogate 124 130. Bonds and stocks of New York corporations; distinc- tion between 125 131. Bonds and stocks of foreign corporations and tax- ability of United States bonds between 1892 and 1898 128 132. Both registered and coupon bonds of foreign corpora- tions are taxable if here 129 133. Money deposited in bank 131 134. The mere right to a legacy or a residuary estate is not presently taxable 133 135. Legacy payable to a nonresident who died before re- ceiving it, when taxable 134 136. Seat or membership in Stock Exchange 138 137. Debts owing by a resident to a nonresident consti- tute property within the meaning of the statute. . 142 138. Notes inventoried at par must be treated as valid obligations, although some were six years over- due . 146 139. Money deposited with trust company where company issues certificate of deposit for same which is held by nonresident decedent at his domicile 147 140. Money deposited with a trust company 148 141. Life insurance policies not taxable 149 142. Property of nonresident without this State 149 143. liegaey to a nonresident beneficiary is taxable 149 144. Money transitorily here not taxable 150 145. Money in savings banks or held by decedent's attor- ney is taxable 150 146. Money deposited by a creditor to pay debt due non- resident 151 147. When debt due nonresident decedent was held not taxable 151 148. Loans made by a partner to his firm are taxable. . . . 151 149. Debt on open account due a nonresident from do- mestic associations 151 150. Memoranda of decisions as to bonds and stocks 152 151. Right of the foreign executor to apply decedent's property in payment of legacies. ? 156 TABLE OF CONTENTS. XVll PAGE. Pab. 152. Kecognition of laws of other States respecting dis- tribution, etc 157 153. Property of decedent where community law prevails. 157 154. Residence of decedent 158 155. Will not conclusive as to residence 161 156. Proceedings and practice 162 CHAPTER VIII. TAXABtE TBANSFEBS EXCEPTIONS AND LIMITATIONS. Pab. 157. Exceptions and limitations 164 158. The general subject 166 159. Limitations; to the l-per cent, class 167 160. Limitations to the 5-per cent, class 168 161. Limitations refer to the aggregate property passing to both classes 169 162. Exceptions; adopted children 170 163. Adoption under the laws of another State 170 164. Children of an adopted child not included 170 165. Recital in will, respecting; not conclusive 170 166. Not included in legacy to children, in ease of father's death 171 167. Mutually acknowledged relation of a parent. .;.... 171 168. The relationship must be mutual 172 169. The relationship can be established as between strangers in blood 173 170. Failure to show the relationship 175 171. When relationship is established 175 172. Proof of relationship 176 173. Beneficiary is a competent witness 176 174. Burden of proof 176 175. Stepparent and stepchildren 176 176. Relation of the parties; facts establishingv 177 177. Living as one family; does not 177 178. Lineal descendants . . 177 179. When the word " children " is equivalent to " de- scendants " 177 180. Husband of a daughter includes " widower " 178 181. Specifically exempted 178 182. Corporations Bpecifically exempted by the Act of 1905 181 183. Decision affecting exemptions generally 182 ii XVIH TABLE OF CONTENTS. CHAPTER IX. Taxable Tbansfbrs — Accrual and Payment or Tax — Discount AND Interest. PAGE. Pas. 184. Accrual and payment of tax 185 185. The general subject 186 186. When the tax accrues 187 187. Accrual, on future and contingent estates 187 188. Id.; when appointment is to be exercised over fund. . 187 189. Id. ; on certain remainder interests 188 190. Id.; on remainder when life tenant can use prin- cipal 188 191. Id. ; upon renounced legacy 188 192. Payment ; to whom made 188 193. Id.; when estate has been distributed 189 194. Voluntary payment 189 195. When payment not deemed voluntary 190 196. Payment in case of a legacy in trust for life with remainder over 190 197. Payment of tax on remainders; Act of 1887 191 198. Payment of tax upon a trust estate 191 199. Payment of tax at decedent's domicile 191 200. Provisions of section 222 not repealed by implication. 191 201. When tax not payable from the estate by the words of a will 192 202. Discount and interest 192 203. When a discount is allowed 193 204. Interest 193 205. Remission of interest 194 206. Application for 194 207. To whom made 194 208. Ignorance of the law ; no excuse 194 209. When application will be denied 194 210. When interest commences 195 211. Interest under the Act of 1887 195 212. Accrued right 195 213. Other decisions relating to discount and interest. . . . 195 214. Coi-responding sections of former acts relating to dis- count and interest 196 CHAPTER X. Taxable Tbanseees — Lien of Tax and Coixection Thereof — Refund of Tax Erroneously Paid. Par. 215. Lien of tax and collection by executors, adminis- trators, and trustees 198 216. The general subject 200 TABLE OF CONTENTS. XIX PAGE. Pak. 217. The tax is a lien upon the property until paid 200 218. The two-year limitation to enforce payment does not apply 201 219. Neither the two, nor the six-year limitations apply to this statute 201 220. Limitations prescribed by section 282 of the Tax Law 202 221. Collection of tax by executors, etc 203 222. Executors, administrators or trustees; liability 204 223. Executor liable ; although estate has been distributed. 204 224. Tax on transfer of real estate; not to be assessed against executor EOS 225. Sale of what property to pay tax 205 226. Surrogate cannot decide executor's liability to pay tax on motion 206 227. Administrator cannot be sued individually for trans- fer tax withheld 206 228. When executor's liability ends 206 229. Subrogation ; for the benefit of creditors 206 230. Refund of tax erroneously paid 207 231. The general subject 209 232. Provisions of this section are exclusive 209 233. Power of surrogate to order refund ; limitation under Act of 1897 209 234. Refund; debt subsequently discovered 210 235. Refund after time to appeal has expired 211 236. The two-year limitation, chapter 382, Laws of 1900. . 211 237. When interest attaches to a refund 213 238. Order need not direct Comptroller to refund 214 239. Right to refund is not a vested right 215 240. Taxing debts, etc., erroneously allowed 215 CHAPTER XI. Bbqttests in Leeu of GoMinssioNS — Liability of Cebtaijt Coepora- TiONS TO Tax. Par. 241. Taxes upon devises and bequests in lieu of commis- sions 216 242. Tax on legacy to executors; subsequently renounced. 217 243. Former section 226 relating to deferred payments omitted from Act of 1905 217 244. Effect of electing to defer payment after chapter 76, Laws of 1899 218 XX TABLE OP OONTEITTS. PAGE. Pab. 245. Liability of certain corporations to tax 219 246. Provisions of this section ; generally complied with . . 222 247. Consent of Comptrollei- to transfers; how obtained. . 222 248. Corporations transfer at their peril; when 223 249. Obligation to give the notice rests upon the bank or other depository 223 250. Corresponding provision of former statutes relative to the liability of certain corporations to tax 224 CHAPTER XII. JUEISDICTION OF THE SUBROGATE APPOINTMENT OP APPEAISEES, ETC. Pab. 251. Jurisdiction of the surrogate 227 252. Original and exclusive jurisdiction 229 253. Surrogate is the taxing officer 229 254. Determine all questions relating to said act 229 255. Power of the surrogate 230 256. Can issue a commission 230 257. What moving papers must show 230 258. May construe a will 230 259. When without jurisdiction; incident 231 260. Jurisdiction, when power of appointment is exer- cised 231 261. Ancillary letters can issue only to, or with the con- sent of, the foreign executor 232 262. Ancillary letters unnecessary in transfer tax proceed- ings 232 263. Jurisdiction over stock of domestic corporations. . . . 232 264. What irregularity don't effect 233 265. Distribution does not affect the jurisdiction 233 266. Corresponding sections of former acts relating to the jurisdiction of the surrogate 234 267. Appointment of appraiser, stenographer, etc 234 268. The general subject 236 269. Chapter 658, Laws 1900, is constitutional 238 270. County treasurers to act as appraiser in certain counties; chapter 173, Laws of 1901, is constitu- tional 238 TABLE OP CONTENTS, XXI CHAPTER XIII. Fbocegdinos bt Afpbaisebs. PAOB. Pab. 271. Proceedings by appraiser 241 272. Character of the law 246 273. Construction of the act 246 274. When appraiser to be appointed 246 275. Who can make the application 247 276. Application of State Comptroller on information and belief as to taxable property 247 277. State Comptroller's right to an appraisal 248 278. Where property is in several counties 248 279. Appraisal of interest; when postponed 248 280. What statute controls proceedings 248 281. Notice of appraisal 249 ,282. Notice; held insufficient under Act of 1887 249 283. People; interested party, under Act of 1885 250 284. Hearings before appraiser 250 285. Power of the appraiser 250 286. May report as to date of decedent's death 251 287. Evidence as to declarations of testator 252 288. Competency of witness 253 289. Testimony of legatee 253 290. Nonresident executor; when not obliged to testify. . . 253 291. Basis of value 254 292. Increase of property ; not to be appraised 254 293. Appraisal of residuary estate where part thereof is subject to appointment 254 294. Effect of failure to tax known property 254 295. When omission to tax life estate amounts to an express reservation thereof 255 296. Burden of proof 255 297. Worthless account; excluded 255 298. Report of appraiser 256 299. What report should show 256 300. What report should contain 256 301. The American experience tables of mortality 259 302. Surrogate may return report to appraiser 260 303. Should vacate order when report defective 260 304. When second appraisal cannot be had 260 XXll TABLE OF CONTENTS. PAOE. Pab. 305. Second appraisal; cannot increase value of assets .. . 260 306. Id.; nor decrease deductions for debts, etc 261 307. Appraisal not regular; when 261 308. When report insufficient 261 309. Surrogate may order further appraisal 262 310. New proceeding 262 311. Former proceeding 262 312. Appraisal of bonds, stocks, and securities 262 313. Stocks of domestic corporations are appraised at •their market value regardless of where their capi- tal is employed 264 314. Unlisted stocks; appraisal of 265 315. Joint-stock associations 266 316. Joint-stock associations and corporations; differ- ence between 266 317. Taxable value; where there is no market value 266 318. Appraisal of inactive stock 267 319. The test of value 267 320. Notes directed to be canceled; appraisal of 267 321. Notes or claims in litigation 268 322. Disputed claim; not appraised at face value 268 323. Appraiser taking fee or reward 268 324. Corresponding section of former acts relating to proceedings by appraisers 268 CHAPTER XIV. Pboceemnqs by Appeaisees — Value of Futtjee and Limited Estates — How Dbteemined. (§ 230, Tax Law.) Pab. 325. The general subject 275 326. Valuation of life estate; where life tenant dies prior to appraisal 276 327. Valuation of remainder interests subject to life an- nuity; where annuitant exceeds his expectation of life 277 328. Vested and contingent future estates and remainders. 278 TABLE OF CONTENTS. XXIU PAGE. Pab. 329. History of the law affecting life estates and remain- ders prior to 1899 279 330. a — Taxing expectant estates at their full undimin- iRhed value 282 331. b — Taxing transfer upon the exercise of a power of appointment 285 332. c — Transfer subject to a contingent incumbrance.. 285 333. d — Increase accruing ; when deemed a taxable transfer 286 334. Contingent remainders since 1899 are presently taxable 286 335. The provisions of the amendments of 1899 (Sec. 230) apply equally to the payment of tax on vested as well as contingent remainders 288 336. When contingent or vested remainder not presently taxable 290 337. a — Where life tenant can use a part or all of the principal 291 338. b — Where life tenant can exercise a power of ap- pointment over the fund 293 339. Words; not enlarging a life estate 294 340. Discretionary power to beneficiary to use principal creates a voidable trust 294 341. Annuities; value of, how ascertained 294 342. Id. ; payment of tax upon 295 343. Id.; tax on fund subject to annuities 295 344. Id.; when cost of annuity determines its value as af- fecting the residuary estate 295 345. Taxes on remainder in trust estates are presently payable 297 346. The Transfer Tax Law does not apply to remainders and reversions created before it went into effect. . 298 347. The Act of 1885; remainder created by deed 299 348. Defeasible interests — transfer of — refers to testa- tor's death 299 349. Decision prior to chapter 76, Laws of 1899; when contingent interests taxable under Act of 1885 .... 299 350. Contingent and expectant estates; Act of 1892 300 351. Vested interests; when taxable 300 352. Contingent interests ; when taxable 300 Xxiv TABLE OF CONTENTS. CHAPTER XV. Peoceedings by Appbaisees — Deductions. (§ 230, Tax Law.) PAGE. Pab. 353. The general subject 303 354. Deductions generally; commissions of executors and administrators • . ■ 305 355. The commissions of temporary administrators 305 356. Commissions of foreign executors 306 357. Executor's commissions as trustee 306 358. Counsel fees 306 359. Disbursements for benefit of estate 306 360. Commissions of trustee 306 361. Deduction of note in litigation 307 362. Estimated expense of administration 307 363. Taxes 307 364. Taxes under Greater New York Charter 307 365. Taxes assessed in decedent's lifetime 308 366. Id. ; when assessment-roll completed 308 367. Id.; due at deceder'/s death '. 309 368. Claims against the decedent's estate 309 369. Doubtful and uncertain claims 309 370. Disbursements of the executor or administrator 310 371. Funeral expenses 311 372. Cost of burial plot 311 373. A judgment, liability to pay which is secured by an indemnity bond and mortgage is not a proper deduction 312 374. Debts due New York creditors by nonresident de- cedent : 313 375. Doubtful claims 313 376. Value of particular estate 314 377. Present value of an annuity 314 378. When cost of annuity a proper deduction 314 379. Apportionment of debts, etc., between exempt and nonexempt personal property . 315 380. Widow entitled to money equivalent in lieu of neces- sary provisions and fuel for sixty days 315 381. Claims, etc., not allowed; expense of unnecessary action 316 382. When debt not allowed 316 383. When commission not to be deducted 316 TABLE OF CONTENTS. XXV FAOE. Pab. 384. Counsel fees; when not allowed 316 385. Sum paid for withdrawal of objections to probate; not allowed 318 386. The amount of the individual bond of a decedent accompanying a mortgage executed by both dece- dent and his wife upon real estate owned by the wife will not be deducted from the decedent's personal estate as a debt owing by him 318 387. Articles enumerated in subd. 3 of see. 2713 of the Code not entitled to money allowance therefor. ... 319 388. Legacy to a, creditor; not to be deducted 320 389. When debts owing by nonresidents not allowed 321 390. Mortgage debts not allowed 321 391. Tax paid in another State 322 392. Taxes under Greater New York Charter; when not deductible 324 393. Repairs to-real estate, not allowed 324 394. Tax directed to be paid as an administration expense. 324 395. When debts cannot be deducted after appraisal 325 CHAPTER XVI. Detebmination of Sueeogate. Pab. 396. Determination of surrogate 326 397. Value of the estate and amount of tax; how deter- mined 328 398. The surrogate is the assessing and taxing officer. . . 328 399. The taxing order is the order of the Surrogate's Court 329 400. When application to the Superintendent of Insurance necessary ., 329 401. Notice of determination; to whom given 329 402. Presumption of notice 329 403. Determination; how far conclusive 330 404. Id. ; final as to known property 330 405. Surrogate to forward copies of all orders to Comp- troller 330 406. When order is not entered by consent 330 407. Interest of beneficiaries under the order 331 408. Vacating order; newly-discovered evidence 331 409. Report can be sent back for correction 331 410. Surrogate's power to correct clerical errors 332 XXVI TABLE OF CONTENTS. PAGE. Pab. 411. Order of exemption; ex parte application for 332 412. Appointment of guardian 333 413. Corresponding section of former acts; relating to the determination of the surrogate 333 CHAPTER XVII. Appeal to the Subrogate — Appellate Division — Coubt of Appeals Pab. 414. Appeal and other proceedings 337 415. Who can appeal 338 416. Executor's right to appeal 338 417. Id.; only parties aggrieved, however, may appeal.. 339 418. Id.; immaterial whether tax can be collected or not; if transfer is taxable 339 419. Id.; where appraiser refuses to appraise an asset. . . 339 420. Id.; only remedy where debts are not urged or reserved 340 421. Id.; to whom and how perfected 340 422. Id., only remedy to correct legal errors 340 423. Id., where Comptroller was not a party 340 424. The order appealed from 341 425. Surrogate can construe will on appeal to him 341 426. Necessity of stating the grounds of appeal 341 427. Object of stating the grounds of appeal 342 428. Surrogate on appeal may receive additional evi- dence and consider new questions subsequently arising 342 429. May receive evidence that transfer was made in contemplation of death 343 430. The surrogate's discretion 343 431. Failure of surrogate to give notice; does not affect. 343 432. Accepting payment as per order does not affect 344 433. When order becomes final and conclusive 344 434. Costs on appeal 344 435. When costs not properly imposed on moving party. . 345 436. Costs governed by section 3240 of the Code 345 437. Allowance of costs carries with it the disbursements. 345 438. Appeal to the Appellate Division 346 439. Appellate Division will oily consider the grounds of appeal 346 TABLE OF CONTENTS. XXVH PAGE. Par. 440. When failure to except to ruling not a prerequisite to review 346 441. Appellate Division will not interfere with surro- gate's refusal to direct a refund 347 442. Appeal to the Court of Appeals; matters in sur- rogate's discretion; not subject to review 347 443. Appeal; will be dismissed, when 348 444. But an order of reversal upon the law and the facts is reviewable when no question of fact is involved. 348 445. When unanimous decision of the Appellate Division is reviewable 348 446. Corresponding sections of former acts relating to appeals 349 CHAPTER XVIII. Modification of Obdebs — Reappbaisai.. (i 232, Tax Law.) Par. 447. Surrogate's power to modify decree 351 448. Decree vacated when statute unconstitutional 353 449. Order modified, although time to appeal has expired. 353 450. When surrogate can modify his decree 354 451. Finality of surrogate's determination 354 452. Surrogate's power to decree previous order erroneous . 355 453. Surrogate's power under subdivision 6, section 2481 of the Code 355 454. Decree not opened to correct an error of law 355 455. Decree modified; where legatee not notified of sur- rogate's determination 356 456. When surrogate cannot grant relief in regard to debts 356 457. Correction of order refused 357 458. Surrogate has no power to modify order on ex parte application 357 459. When surrogate may vacate his order 358 460. Reappraisal; provision applies only to errors of fact 358 461. Reappraisal; when not entitled to 358 462. Rehearing; when refused 358 463. Improper to raise values on reappraisal 359 XXVlll TABLE OF CONTENTS. PAGE. Par. 464. Conclusiveness of an appraisal 359 465. Corrections . . 359 466. When order will be set aside 360 467. The Supreme Court cannot vacate order for reap- praisal 360 468. The Comptroller may either apply for a reappraisal or appeal 360 469. Supreme Court at Special Term will not review sur- rogate's discretion 361 CHAPTER XIX. Composition Agbeements — Sureogate's Assistants — Pboceedinqs BY District Attorneys. Par. 470. Composition of transfer tax upon certain estates . . . 364 471. Composition agreements 365 472. Corresponding section of former acts relating to composition agreements 366 473. Surrogates' assistants in New York, Kings, and other counties 367 474. Corresponding sections of former acts relating to sur- rogates' assistants, etc 369 475. Proceedings by district attorneys 370 476. Certificate of " probable cause " 372 477. When proceedings to be commenced 372 478. Which district attorney can bring proceedings 373 479. Former adjudication exempting legacy is a bar 374 480. How proceedings commenced 374 481. What can be shown on the return of the citation. . . 374 482. When the correctness of the assessment cannot be raised 375 483. Order directing payment 376 484. Order for payment of tax, how enforced 376 485. This proceeding is not in nature of an action for a penalty 37g 486. Costs to district attorney 376 487. When district attorney is unsuccessful 377 488. Corresponding sections of former acts relating to district attorney proceedings 377 TABLE OF CONTENTS. XT IV CHAPTER XX. Receipts — Fees of County Tbeasubebs — Books, Etc., Fubnisiibd BT State Comptbolleb — Repoets of Sureoqatb, County Clebe, AND County Tbeasubeb — Eepoet of State Comptbolleb — Pay- ment AND APPUCATION OF TAXES. PAGE. Pab. 489. Receipts from county treasurer or comptroller .... 379 490. Corresponding sections of former acts relating to receipts 380 491. Fees of county treasurer 382 492. Corresponding sections of former acts relating to fees of county treasurer 382 493. Books and forms to be furnished by the State Comp- troller 383 494. Corresponding sections of former acts relating to books, etc., to be furnished by the State Comp- troller 384 495. Reports of surrogate and county clerk 384 496. Corresponding section of former acts relating to re- ports of surrogates and county clerks 385 497. Reports of county treasurers 385 498. Corresponding sections of former acts relating to reports of county treasurers 386 499. Report of State Comptroller ; payment of taxes .... 387 500. Corresponding sections of former acts relating to report of State Comptroller, etc 387 501. Application of taxes 388 502. Corresponding sections of former acts relating to application of taxes 388 CHAPTER XXI. Definitions — Exemptions in Abticle One not Applicable. Pab. 503. Definitions 389 504. The words "estate" and "property" defined 390 505. The word "estate" as interpreted prior to 1892... 390 506. Same construction in reference to property passing to lineals and others 391 507. What included in the definition of the word " prop- erty " 392 XXX TABLE OF CONTENTS. PAGE. Pae. 508. Property exempted by the definition in 1892 392 500. Meaning of " transfer " 393 510. There is no "transfer" by will unless legacy is accepted 393 511. Exemptions in article 1 not applicable 394 512. First included in the Transfer Tax Law in 1900 394 Appendix 399 Forms 409 Table of cases cited 447 General index 463 Index to forms 507 Index to sections of the Transfer Tax Law 509 THE TRANSFER TAX LAW. (Sections 220 to 243, both inclusive, of the Tax Law.) CHAPTER I. Relating to the Tbansfer Tax Law. 1. The tax is upon the right of succession under a will, or devolution in case of intes- tacy. 2. The law is constitutional. 3. Provisions of the act declared constitutional. 4. Constitutionality of chap. 41, Laws 1903. 5. Unconstitutional provision; chapter 76 of the Laws of 1899, amending section 230 of the Act of 1896. 6. The value of the whole estate transferred to taxable per- sons determines the liability of each transfer to taxation. 7. The nature of the tax. 8. Procedure; statute governing. 9. Amendments are not retroactive unless stated to be. 10. Corresponding sections of former acts relating to tax- able transfers. 11. Amendments by chap. 368, Laws of 1905. 1 . The Tax is upon the Bight of Succession under a Will, or Devolution in Case of Intestacy. In several of the earlier cases the court stated that in deciding the question therein presented it was not necessary to determine whether the tax was upon the right of succession of property, or upon the property. Matter of McPherson, 104 N. Y. 306 ; Matter of Sher- well, 125 N. Y. 376. It was determined, however, in the Matter of Swift, 137 N. Y. 77, that the tax imposed by the Act of 1885, as amended by the Act of 1887, was a tax upon the right of succession to property, and not a property tax. Other cases have since held that the subsequent acts of [1] 2 THE TBANSFER TAX LAW. the Legislature affecting taxable transfers impose this tax upon the right of succession under a will, or devolu- tion in case of intestacy. Matter of Merriam, 141 N. Y. 479; Matter of Hoffman, 143 N. Y. 327 (decided since the Act of 1892) ; Matter of Western, 152 N. Y. 93-99. In the Matter of Vanderbilt, 172 N. Y. 69 (decided since the Act of 1896), the Court of Appeals held that the fact that a tax is to be paid out of the property does not render it a tax on property, but that " a tax is a property tax when imposed by reason of the owner- ship; — a transfer tax when imposed on the method of In the case of Magoun v. Illinois Trust and Savings Bank, 170 U. S. 283, the court says in support of an inheritance tax that such taxes are based on two prin- ciples : " (1) An inheritance tax is not one on property but one on succession. "(2) The right to take property by devise or de- scent is the creature of the law and not a natural right — a privilege, and, therefore, the authority which con- fers it may impose conditions upon it. From these principles it is deduced that the State may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions, and is not precluded from this power by the provisions of the respective constitutions requiring uniformity and equality of taxation." 2. The Law is Constitutional. The Act of 1885 was declared constitutional in the Matter of McPharson, 104 N. Y. 306. Judge Earl, in writing the opinion of the court, in which all concurred, THE LAW OF TAXABLE TRANSFERS. 6 says : " We entertain no doubt that such a tax can be constitutionally imposed. The power of the Legis- lature over the subject of taxation, except as limited by constitutional restrictions, is unbounded. It may im- pose all the taxes upon lands, or all upon personal prop- erty, or all upon houses or upon income "* * *. It is not very important to determine whether the Act of 1885 is to be regarded as imposing a tax upon prop- erty or upon the succession or devolution of property by will or intestacy. In either case it is a special tax * # * >> To the same effect, see Matter of Shenvell, 125 N, Y. 376. The Act of 1887 was upheld in U. S. v. Perkins, 163 U. S. 625, Justice Brown of that court saying in his opinion : ' ' While the laws of all civilized states recog- nize in every citizen the absolute right to his own earn- ings, and to the enjoyment of his own property, and the increase thereof during his life, except so far as the State may require him to contribute his share for public expenses, the right to dispose of this property by will has always been considered purely a creature of stat- ute, and within legislative control." The Act of 1892 was upheld in the Matter of Gould, 156 N. Y. 423, the court holding that it was certainly within the constitutional power of the Legislature to tax all property transferred by will, whether the motive was to make a gift or pay a debt. 3. Provisions of the Act Declared Constitutional. Subdivision 5 of section 220, added by chapter 284, Laws 1897, taxing property transferred by the exer- 4 THE TEANSFBK TAX LAW. cise of a power of appointment, is constitutional and not a violation of either vested or contract rights. Mat- ter of VanderUlt, 50 App. Div. 246, 63 N. Y. S. 1079; affd., 163 N. Y. 519, on opinion below. Matter of Potter, 51 App. Div. 212, 64 N. Y. S. 1013; followed in Matter of Vanderbilt, 58 App. Div. 619, 68 N. Y. S. 1150; affd., 166 N. Y. 640; Matter of Delano, 176 N. Y. 486. Chapter 76 of the Laws of 1899 (§ 230), assessing immediately the tax upon contingent estates at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible and mak- ing such tax due and payable forthwith out of the prop- erty transferred, was held constitutional in the Matter of VanderUlt, 172 N. Y. 69; Matter of Bres, 172 N. Y. 609. Chapter 658, Laws of 1900, relative to the appoint- ment of transfer tax appraisers in the counties of New York, Kings, and Erie, was declared constitutional, as it was not a local act and, therefore, did not come within the provisions of the Constitution, that no private or local bill shall embrace more than one sub- ject, which shall be expressed in the title. Matter of Wallace, 71 App. Div. 284, 75 N. Y. S. 838. Chapter 173 of the Laws of 1901 (§230), allowing the county treasurers of certain counties to act as ap- praisers, although retaining a certain percentage of all transfer taxes paid and accounted for by him each year as a part of his fees, was held constitutional in the Matter of Fuller, 62 App. Div. 428, 71 N. Y. S. 40, revg. same case, 34 Misc. Eep. 750. THE LAW OP TAXABLE TRANSFERS. 5 4. Constitutionality of Chapter 41, Laws of 1903. The constitutionality or validity of chapter 41 of the Laws of 1903, in effect March 16th of that year, amend- ing section 221 of the Transfer Tax Law, so as to im- pose a tax upon the transfer of real as well as per- sonal property to those in the 1-per-cent. class, has been attacked upon a somewhat unusual ground, to-wit : That the certificate of the Secretary of State attached to said act, invalidates the act, in that it states that it was " Passed a majority being present," whereas sec- tion 25 of article III of the Constitution of the State, provides as follows : § 25. On the final passage in either house of the Legisla- ture, of any act which imposes, continues or revives a tax, or creates a debt or charge, or makes, continues or revives any appropriation of public or trust money or property, or re- leases, discharges or commutes any claim or demand of the State, the question shall be taken by yeas and nays, which shall be duly entered upon the journals, and three-fifths of all the members elected to either house shall in all such cases, be necessary to constitute a quorimi therein. In the Matter of Weeks (not reported), the decedent died possessed of real estate in this State valued at $38,000, which she devised to her son, and upon the confirmation of the report of the appraiser, before Sur- rogate Howell of Orange county, the State Comp- troller claimed that this real estate was taxable at 1 per cent., the decedent having died subsequent to the passage of chapter 41 of the Laws of 1903. The executors contended that only a majority of the Legislature was present at the passage of this act, 6 THE TRANSFER TAX LAW. and that the evidence of this fact is shown by the orig- inal certificate annexed to this bill, which certificate is required to be annexed by the presiding officer of each house, according to section 40 of the Legislative Law, upon the passage of a bill where three-fifths of the Legislature are constitutionally required to be present, and that chapter 41 as published in the Session Laws of 1903 is certified to have been passed by a majority, and not in the presence of three-fifths of the members of both houses. Section 40 of the Legislative Law reads as follows : Certificate of presiding officer: Upon the passage of a bill or concurrent resolution by either house, the presiding officer thereof, shall append to such bill or resolution, a cer- tificate of the date of its passage by the votes of a majority of all the members elected to such house or in the presence of three-fifths of such members, if such be the case, or by the votes of two-thirds of all members elected to such house, as the case may be. No bills shall be deemed to have so passed unless certified by the presiding officer, which certificate to such effect shall be conclusive evidence thereof. The surrogate in entering the order assessing a tax upon this real estate filed a memoranda of his decision, the important part of which, after referring to the ob- jection raised by the executors, is as follows : I am, therefore, forced to the conclusion that this law was passed by a majority vote, and not by three-fifths of the members being present, and that the constitutional objection would apply to this act "which imposes, continues or re- vives a tax," if the words " a tax " mean any tax and to include all taxes. We find, however, that these same words "An act which imposes, continues or revives a tax " used in another part of the Constitution, have been interpreted by THE LAW OF TAXABLE TRANSFEBS. 7 the Court of Appeals of this State in the Matter of Mc- Pherson, reported in 104 N. Y., page 306, where it was held that the word " tax " as used in the expression, " which im- poses, continues or revives a tax " means a general tax, an annual recurring tax, and does not include any special tax. In the opinion of Earl, Justice, in that case, the following language is used: We are of the opinion that this section of the Constitution is not applicable to this case. In terms it applies to every tax which the Legislature can impose and is not confined to a property tax. It is not even by its terms confined to a general tax embracing the whole State; but the language, literally construed, is broad enough to embrace every local tax imposed for local purposes. As stated above, taxes may be imposed upon a great variety of objects. They may be direct or indirect, special or general, and they may be im- posed in the shape of excise and licenses, upon hawkers, peddlers, auctioneers, insurance agents, liquor dealers and others. All the contributions for the support of the govern- ment, enforced from individuals in the various ways men- tioned, are, properly speaking, taxes. Notwithstanding the general language of the section referred to, we do not think it was intended to apply to every tax which the Legislature could impose, and so it has been held. The object of the constitutional provision was to convey information to the members of the Legislature and to the people, and it should have a practical construction with a view to accomplish its purpose so far as attainable, and to carry out the policy which we may assume dictated it. The tax imposed by this act is a permanent one. It is always uncertain upon whom it will fall and how much revenue it will produce. It would have been impossible for the Legislature, perhaps years in advance, to specify the particular objects to which the tax should be applied, and we are of the opinion that this section of the Constitution was intended to apply to the annual recurring taxes known at the time of the adoption of the Constitution and imposed generally upon the entire property of the State. The Legis- 8 THE TKANSFEK TAX LAW. lature would know definitely the objects for which such taxes were imposed and could anticipate, with some certainty, the amount which they would produce ; and in their imposition it was deemed important by the framers of the Constitution that the object of the tax should be stated. But we do not think that the policy embodied in the section had any refer- ence to special taxes which may be collected in a variety of ways under general laws, such as auction duties, excise duties, taxes on business or particular trades, avocations or special classes of property. This case has been followed in the Matter of Clarh v. Sheldon, 106 N. Y. 104, and in the Matter of the Will of Vassar, 127 N. Y. 1. I conclude, therefore, that these words, "An act which imposes, continues or revives a tax " as used in the Constitu- tion, have been defined and interpreted by the highest court of this State, and that this language is not to be interpreted as applying to any and all taxes, but only the annual re- curring general taxes, and that the tax in question, the trans- fer tax, is a special tax and that the constitutional provision, therefore, does not affect it. The order to be made herein Avill, therefore, include a provision fixing a tax of 1 per cent. upon the reported value ($38,000) of the real estate passing from the decedent to her son, Thomas W. Weeks. Upon appeal to the surrogate, the order was affirmed June 12, 1905, upon the further ground that from the journals of the Senate and Assembly respectively, for the year 1903, it appears that the act was passed by a majority, three-fifths being present. This same question was first raised by appeal in the Matter of Stichney before Surrogate Fitzgerald of New York county, and the Law Journal of June 9, 1905, contains the opinion of the surrogate, affirming the order assessing the tax and holding the law con- stitutional. It appears that in June of 1904 certain THE LAW OF TAXABLE TRANSFERS. 9 amended certificates were made by the ex-president of the Senate of 1903 and the ex-speaker of the As- sembly of that session, and were filed in the oflfice of the Secretary of State and attached to the original act, which read that the bill was duly passed, a major- ity of all the members voting in favor thereof, three- fifths being present. On the hearing before the appraiser the Comptroller introduced in evidence extracts from the journals of the respective houses, which establish that on the final passage of the bill the requisite three-fifths were pres- ent. The appellants claim that the original act and certificates are conclusive; that the amended certifi- cates and affidavits filed therewith were inadmissible in evidence, as incompetent, and that the amended cer- tificates were appended to the original bill without authority of law. They also contended that neither the extracts from the Journals, nor the Journals them- selves, are legitimate evidence, as they were not rec- ords by common law and have not been made so by statute. Before 1892 there was no provision of law making the certificate of the presiding officer conclusive evi- dence as to the manner in which bills were passed, and the surrogate in his opinion states that, as an import- ant fact to be kept in mind, as no decision by the courts of this State has been cited which arose under a law enacted subsequent to the Legislative Law, (Chap. 482, Laws 1892, as amended.) The court says : "In the present case, however, I do not think that I am confronted with a situation pre- senting a question as to the constitutionality of the Act 10 THE TRANSFEB TAX LAW. of 1892 prescribing the conclusiveness as evidence of the certificate therein specified. The statement ap- pended to the Session Law relative to the law in ques- tion, is only made presumptive evidence that the orig- inal law was certified by the proper officers in the man- ner stated. The statement obviously does not con- form to the certificates of such officers to the original law, and whatever may be taken to be its meaning, or its intended effect, it is open to contradiction by com- petent proof. The certificates attached to the original law, as far as they go, prove themselves, or, to that ex- tent are made conclusive by the Act of 1892 (Chap. 482, as amended) on the assumption that it is a valid law, and so fai' as they omit to state the fact as to the act having been passed in presence of three-fifths of the members elected to each house, the certificates were incomplete and defective and there is nothing in the Act of 1892 last mentioned, in the view I take of it, in- compatible with the right of the presentation of com- petent proof on the subject. The journals which have been received in evidence I consider such proof, and they prove that the requisite quorum was present on the final passage of the act in question and this evi- dence supersedes the incomplete and defective certifi- cates of the presiding officers." The surrogate then refers at length to the opinion of the court in People ex rel. v. Supervisors, 8 N. Y. 317 ; Darlington v. Mayor, etc., 2 Eobt. 277; affd., 31 N. Y. 164; Rumsey v. N. Y. <& N. E. R. R., 130 K Y. 88, and Matter ofN. T. d L. I. Bridge Co., 148 N. Y. 540-555, the Court of Appeals in the last case saying (p. 555) : " We think the journals of the Senate and Assembly THE LAW OF TAXABLE TRANSFERS. 11 were properly received in evidence and they show con- clusively that the Act of 1892 received a two-thirds vote * * * the journals were offered in evidence not for the purpose of contradicting the certificates, hut to supplement them, as they were defective. We think it would defeat the provisions of the Constitu- tion and the statute if, in such an emergency as was here presented, recourse could not be had to the jour- nals of the two houses." The surrogate, in affirming the order, stated that in his opinion the amended certificates and affidavits of the presiding officers were incompetent evidence. The validity of chapter 41 will doubtless be further contested by the representatives of the estate, as there are a large number of appeals in other estates pending which have been held in abeyance awaiting the Stick- ney decision. 5. Unconstitutional Provision; Chapter 76 of the laws of 1899, Amending Section 230 of the Act of 1896. Section 230 of the Act of 189& was amended by chapter 76 of the Laws of 1899 by providing that "All estates upon remainder or reversion which vested prior to June thirtieth, eighteen hundred and eighty-five, but which will not come into actual possession or enjoyment of the person or corpora- tion beneficially interested therein until after the passage of this act shall be appraised and taxed as soon as the person or corporation beneficially interested therein shall be entitled to the actual possession or enjoyment thereof." This provision was declared unconstitutional by the Court of Appeals in the Matter of Pell, 171 N. Y. 48, the court holding that to attempt to impose a tax in such a case, based on the succession, would be to dimin- 12 THE TRANSFER TAX LAW. ish the value of vested estates, to impair the obligation of a contract, and to take private property for public use without compensation. The question arose under a will which took effect in 1863, whereby the testator Pell had given his wife a life estate in his property with remainder over at her death to certain nephews and nieces or their issue, and to a sister. The widow died in 1899, and it was then sought to tax the remainder interests which then vested in possession. The Appellate Division (60 App. Div. 286, 70 N. Y. S. 196) held that if, under the Transfer Tax Law, nothing could be taxed but the right of succession, then, as that right passed in 1863, the property was not taxable, but they evidently viewed the provisions of the Transfer Tax Law tax- ing the property of a nonresident, and gifts causa mortis, as a tax upon property, and held that the tax in question could be sustained as a tax upon property, thus eliminating all constitutional objections in refer- ence to impairing the vested rights of the remainder- men. By chapter 173 of the Laws of 1901 this provision was amended by applying its provisions only to re- mainders and reversions vesting before May 1, 1892, but after the decision of the Court of Appeals, revers- ing the Appellate Division in the Pell case, was handed down May 6, 1902, and subsequent to this last amend- ment, no attempt has been made since to assess a tax upon such vested remainders, and the entire provision was omitted in the amendment to section 230 by chap- ter 368 of the Laws of 1905. THE LAW OF TAXABLE TBANSFEES. 13 6. The Value of the Whole Estate Transferred to Taxablie Persons Determines the Liability of Each Transfer to Taxation. Prior to the Act of 1892 the amount of each legacy, distributive share, or other interest was considered separately for the purpose of determining whether the taxable limitation was equaled or exceeded, and the word ' ' estate ' ' was held to refer to the estate passing to the beneficiary, and not the aggregate estate of the decedent. Matter of Cager, 111 N. Y. 343 ; Matter of Hone, 112 N. Y. 100; Matter of Westurn, 152 N. Y. 93-99. By section 22 of the Act of 1892 the words " estate " and ' ' property ' ' were defined ( substantially the same, as in section 242 of the Act of 1905) to mean the prop- erty or interest therein of the testator intestate, grantor, bargainor, or vendor, passing or transferred to those not herein specifically exempted from the pro- visions of the act, and not as the property or interest therein passing or transferred to individual legatees, devisees, etc., and the Court of Appeals, in the Matter of Hoffman, 143 N. Y. 327, in construing, the provi- sions of this section, held that it was the aggregate amount of the estate passing to taxable persons and not the share of any particular legatee or distributee which determines the liability to, or exemption from, the tax, although the fact remains that the amount of tax is determined by reference to the value of each legacy or distributive share and not by reference alone to the decedent's aggregate estate. In the Matter of Bliss, 6 App. Div. 192, 39 N. Y. S. 875, the court held 14 THE TRANSFER TAX LAW. that, where a testator leaves an estate of $829.16, giv- ing $414.58 to his sister and $207.29 to each of two nephews, the legacies to the nephews are not taxable, as the legacy to the sister (being less than $10,000) is " specifically exempted " within the meaning of the statute, and the amount passing to the two nephews was less than $500. In the Matter of Corbett, 111 N. Y. 516, the Court of Appeals, following the Matter of Ho f man (supra), held that it was the intent of the Legislature to pro- vide that all of the testator's property, passing to those not specifically exempted from taxation, is to be included in determining whether the amount of the personal estate passing is of the value of $10,000; that the statute only " specifically exempted " a bishop or religious corporation (at that time) from the provisions of the act, and that where a brother and sister are each entitled to one-third of an estate valued at $11,880.69, and two nieces are each entitled to the remaining one-third, that the portion thereof pass- ing to the brother and sister is taxable at 1 per cent., although when considered alone the amount passing to the 1-per-cent. class was less than the $10,000 limitation. The effect of this decision was to over- rule the Matter of Bliss (supra), and establish that both the 1-per-cent. and the 5-peir-cent. class are ' ' tax- able persons." The practice of taxing all transfers to those in the 5-per-cent. class, where the aggregate amount transferred to both classes of taxable persons was over $500, but less than $10,000, has been followed in many counties since the Act of 1892, and this prac- tice seems now to be fully established by the recent THE LAW OF TAXABLE TBANSFEES. 15 decisions. See Matter of Rosendahl, 40 Misc. Eep. 542, 82 N. Y. S. 992; Matter of Garland, 88 App. Div. 380, 84 N. Y. S. 630; Matter of McMurray, 96 App. Div. 129, 89 N. Y. S. 71 (overruling Matter of ConUin, 39 Misc. Eep. 771, 80 N. Y. S. 1124, and affirming an earlier decision on this same question, Matter of Hall, 88Hun, 68, 34N. Y. S. 616). By the amendment to section 221 by chapter 41 of the Laws of 1903, in effect March 16th of that year (re-enacted by chapter 368 of the Laws of 1905, with- out amendment), the law imposed a tax upon real property as w,ell as personal property passing to those in the 1-per-cent. class of taxable persons, and the question arose as to whether it was intended that both the real property and the personal property must sev- erally be of the value of $10,000 before it was taxable, or whether the value of the two classes of property was to be considered together for the purpose of ascer- taining if the taxable limitation had been reached. In the Matter of Hallock, 42 Misc. Eep. 473, 87 N. Y. S. 255, a brother devised and bequeathed to his sister all his real estate of the value of $6,500, and personal property exceeding $10,000 in value, and it was claimed on the part of the estate that the values of the real and personal property were not to be added together; that real property passing to a sister was only taxable when, considered alone, it exceeded $10,000 in value. The court held that, since this amendment, it was the intention of the law to impose the tax on the property, " real or personal;" that is to say, " of whatever kind," or " without regard to its character," and that the aggregate value of the 16 THE TKANSFEE TAX LAW. real and the personal property passing to the sister was taxable at 1 per cent. To the same effect see Matter of Fisher, 96 App. Div. 133, 89 N. Y. S. 102. In view of the fact that the real object of this amend- ment was to make real property equally taxable with personal property, it is doubtful if this precise ques- tion will ever be submitted to the Court of Appeals for determination, in view* of the construction given to section 22 of the Act of 1892, defining the words " estate " and " property " (now section 242 of the Act of 1905) by that court in the Matter of Hoffman, 143 N. Y. 327. 7. The Nature of the Tax. The earlier decisions held that the taxes imposed by the act are special and not general; and the rule is that special tax laws are to be construed strictly against the government and favorably to the taxpayers. A citizen cannot be subjected to special burdens with- out clear warrant of law. Any doubt should be re- solved in favor of the taxpayer. Matter of Enston, 113 N. Y. 174; Matter of Vassar, 127 N. Y. 1; Matter of Fayerweather, 143 N. Y. 114; Matter of Harbeck, 161 N. Y. 211. Courts have no general powers of jurisdiction in these proceedings; the only authority is to be found in the act itself. The jurisdiction is special and specially conferred by the act. Matter of Smith, 40 App. Div. 480, 58 N. Y. S. 128. 8. Procedure; Statute Governing. The method of procedure in a proceeding for the ascertainment and determination of a transfer tax THE LAW OF TAXABLE TKANSFEKS. 17 is controlled by the statute on the subject in force at the time of the institution of the proceeding, al- though the tax itself and the rights of the parties are controlled by an earlier statute. Therefore, in a pro- ceeding instituted in 1896, upon the determination of the particular estate, to ascertain the amount of tax upon a legacy in remainder under the will of the tes- tator, who died in 1890, the rights of the parties de- pend upon the statute as amended in 1887 (chapter 713), but the method of procedure depends upon the statute of 1892 (chapter 399). Matter of Sloane, 154 N. Y. 109; Matter of Davis, 149 N. Y. 539. 9. Amendments are nat Ketroactive Unless Stated to be. The various amendatory acts referred to in the foot- notes to the different sections have not been construed to have any retroactive effect except such intention was clearly shown by the language used. In the Matter of Van Kleeck, 121 N. Y. 701, the Court of Appeals said : ' ' But legislative acts are al- ways construed as prospective in their operation, un- less by their plain language it can be seen that it was the legislative intention that they should have retro- active effect." To the same effect, Matter of Seaman, 147 N. Y. 69. Subdivision 3 of section 1 of the Act of 1892 em- braced substantially the provisions contained in sub- divisions 3, 4, and 6 of section 220 of the Act of 1896, and is the same as the corresponding subdivision of section 220 of the Act of 1905, and, in referring to the portion thereof which is now contained alone in subdi- 2 18 THE TRANSFEE TAX LAW. vision 3, the Court of Appeals, in the Matter of Sea- man, 147 N. Y. 69, 76, 77, said that this provision was to be construed as affecting grants or gifts causa mortis, and does not include transfers by will or intes- tacy, so as to subject to taxation rights of succession which accrued before the statute came into existence, thus making the act retrospective in its operation. The exemption of bishops and religious corpora- tions by chapter 169, Laws of 1892, and continued in the Acts of 1892 and 1896, was retroactive. Roman Catholic Church v. Niles, 86 Hun, 221. The words " heretofore or hereafter " were omitted from the provisions of section 221 exempting bequests to a bishop and to certain corporations, as amended and re-enacted by chapter 368, Laws of 1905. It seems that a repeal of a statute of limitations may lawfully be retroactive. Matter of Moenich, 39 Misc. Rep. 480, 80 N. Y. S. 222. See Matter of Hoople, 179 N. Y. 308, as to the effect of the two-year limitation relative to refunds under section 225. An amendatory statute has no retroactive effect un- less such a legislative intent is discoverable in the act. Matter of Miller, 110 N. Y. 216. The provisions of section 230, ' * Whenever an estate for life or for years can be divested by the act or omission of the legatee or devisee, it shall be taxed as if there were no possibility of such lunitation," has no retroactive effect, and applies only to the life es- tate, not to the reversion. Matter of Sloane, 154 N. Y. 109, affg. same case, 19 App. Div. 411, 46 N. Y. S. 264. THE LAW OF TAXABLE TRANSFERS. 19 10. Corresponding Sections of Former Acts Belating to Tax- able Transfers. Section 1, chapter 483, Laws of 1885 not only defined the taxable transfers, but also contained provisions relating to the exemptions and limitations, which were afterward placed in section 2 of the Act of 1892. The Act of 1885 became a law June 30th of that year and imposed a tax of five dollars upon each hundred dollars of property transferred by will or the intestate laws of this State, or by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to a body politic or corporate, in trust or other- wise, or by reason whereof any person or body politic or corporate shall become beneficially entitled in possession op expectancy, to any property or to the income therefrom, other than to or for the use of a father, mother, husband, wife, children, brother and sister, and lineal descendants born in lawful wedlock and the wife or widow of a son and the hus- band of a daughter, and the societies, corporations, and in- stitutions now exempt by law from taxation; provided that an estate valued at less than $500 shall not be subject to such tax. Chapter 713, Laws of 1887, in effect June 25th of that year, amended section 1 so as to impose a tax upon the prop- erty of a nonresident decedent within this State at the time of such nonresident's death. It also included in the list of exempt persons an adopted child or children of decedent, or any person to whom the deceased for not less than ten years prior to his death stood in the mutually acknowledged rela- tion of a parent. Chapter 215, Laws of 1891, in effect April 20th of that year, further amended section 1 by including any transfer " made in contemplation of the death of the grantor or bargainor," as a taxable transfer. By this amendment It was further provided that all transfers of personal property to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a 20 THE TRANSFER TAX LAW. daughter, or any child or children adopted as such in con- formity with the laws of the State of New York, or to any person to whom the deceased for not less than ten years prior to death stood in the mutually acknowledged relation of a parent, or to any lineal descendant born in lawful wedlock, were subject to a tax of one dollar on every hundred dollars, or fractional part thereof ; provided that an estate which may be valued at a less sum than $10,000 shall not be subject to any such tax. Chapter 169, Laws of 1892, in effect March 19th of that year, amended section 1 by adding at the end thereof the following : " Provided further that any property heretofore devised or bequeathed, or which may hereafter be devised or bequeathed to any person who is a bishop or to any reli- gious corporation shall be exempted from and not be subject to the provisions of this act." Chapter 399, Laws of 1892, in effect May 1st of that year, repealed the Act of 1885 and all amendments thereto, and revised the prior laws relating to taxable transfers, section 1 of said act relating solely to taxable transfers of property of both resident and nonresident decedents, and section 2 of said act relating solely to the exemptions and limitations provided for in said act. In 1896 the Commissioners of Statutory Revision who had been directed to prepare and present to the Legislature a bill for the consolidation and revision of the general statutes of the State relating to the collection and assessment of taxes, and the exemptions of property from taxation throughout the State, presented to the Legislature " The Tax Law," entitled "An act in relation to taxation, constituting chapter 24 of the general laws," which subsequently became chapter 908, Laws of 1896, and included, with certain amendments, chapter 399 of the Laws of 1892, which became article 10 of the Tax Law, section 1 of the Act of 1892 becoming section 220 of the Act of 1896. Chapter 284, Laws of 1897, in effect April 16th of that year, amended section 220 by dividing subdivision 3 of said THE LAW OF TAXABLE TKANSFEBS. 21 section into subdivisions 3, 4, and 6, as above stated, and adding subdivision 5, which was a new provision. 11, Amendments by Chaper 368, Laws of 1905. Chapter 368, Laws of 1905, in effect June 1st of that year, re-enacts with certain amendments the provisions of article 10 of chapter 908 of the Laws of 1896 as amended. No material change is made affecting the substantive law as con- tained in chapter 908 aforesaid, as amended, but many changes in phraseology, or by reason of rearrangement of the various provisions, that is, taking certain provisions from one section and embodying them in another section contain- ing provisions of a similar nature, have been made, so as to make the act more consistent in its arrangement, and more available for reference. The more important changes are as follows : 1. The existing provision of section 221 relating to " mutu- ally acknowledged relationship," is further qualified by in- serting the words, " and provided also, that the parents of such child shall be deceased when such relationship com- menced." 2. Section 221 of the act, as amended, also exempts de- vises or bequests to " educational, charitable, missionary, benevolent, hospital, or infirmary corporations." The spe- cific exemptions will only apply to bequests or devises by decedent's dying subsequent to June 1, 1905, as the words '' heretofore or hereafter," which gave the provision of former section 221 a retroactive effect in respect to bequests to a bishop or a religious corporation, have been omitted. The rule established in the Matter of Prime, 136 ¥. Y. 347 — that such exemptions apply only to domestic corporations — will limit the above exemptions to corporations organized under the laws of this State. 3. Section 226 of the former statute providing for deferred payments is omitted, inasmuch as the provisions of such sec- tion are now obsolete since the enactment of chapter 76 of the Laws of 1899, providing for the immediate taxation of all 22 THE TRANSFER TAX LAW. future and contingent estates, and the payment of the tax out of the property transferred in trust. 4. Section 227 providing for the liabilities of certain cor- porations has been amended so as to impose further con- ditions and requirements upon trust companies, banks, and other depositories relating to the transfer of stock or other property of decedents, and the delivery of the contents of safe- deposit boxes rented in the joint name of the decedent and one or more persons. 5. The last provision in the old section 23Q, providing for the taxation of remainders vesting prior to May 1, 1892, has been omitted, such provision having been declared uncon- stitutional in the Matter of Pell, lYl IST. Y. 48. 6. Section 231 requires the surrogate to " forward to the State Comptroller a copy of the original taxing order, and also copies of all orders entered by him in relation to or affecting in any way the transfer tax on any estate, including orders of exemption," instead of forwarding simply a notice of assessment of the tax as heretofore. 7. By section 234, assistants and clerks in the twelve counties therein mentioned are appointed by the Comptroller upon the recommendation of the surrogate, instead of by the surrogate, as heretofore. 8. The other changes relate to changes in phraseology, form, or rearrangement of the provisions already existing, as will appear by reference to the various sections. CHAPTER II. The Geneeal Subject Continued. 12. Meaning of the word " trans- fer." 13. When the transfer takes place. 14. When tax attaches to legacy. 15. Tax will attach upon the dev- olution of title. 16. Transfer of title; time of. 17. When legal and equitable title vesta. 18. Amount of tax; how meas- ured. 19. Meaning of provision " when person becomes beneficially entitled," etc. 20. Meaning of the word "estate" prior to Act of 1892. 21. To what the word " deed " re- fers to in this act. 22. The term " intestate laws." 23. Intestate law; distribution among collaterals. 24. Equitable conversion ; could not be invoked. 25. Where legatee dies before con- version takes place. 26. Renunciation of legacy; tax is then upon the ultimate dev- olution. 1 2. Meaning of the Word " Transfer." "A tax shall be and is hereby imposed upon the transfer of any property * * *." (§ 220 of the Transfer Tax Law.) The Court of Appeals, in the Matter of Gould, 156 N. Y. 423, construes the word "transfer" as used in this act as f oUows : " It is certainly within the constitutional power of the Legislature to tax all prop- erty by will, whether the motive of the testator be to make a gift, or pay a debt, and the language, abso- lutely unambiguous and free from saving clauses, which the Legislature employed to accomplish that result, affords the best indication that the word ' transfer ' in the statute is used advisedly and ac- cording to its ordinary legal signification, which is that the owner of a thing delivers it to another person [23] 24 THE TEANSFER TAX LAW. with the intent of passing the rights which he has in it to the latter. It matters not what the motive of a transfer by will may be, whether to pay a debt, dis- charge some moral obligation, or to benefit a relative for whom the testator entertains a strong affection, if the devise or bequest be accepted by the beneficiary, the transfer is made by will, and the State by the stat- ute in question makes a tax to impinge upon that per- formance." " Transfer " means the passing of property in pos- session or enjoyment, present or future, without re- gard to whether the actual possession and enjoyment follow immediately or come at some future time. Matter of Hitchins, 43 Misc. Rep. 485, 89 N. Y. S. 472; affd., 92 N. Y. S. 1128; affd., 181 N. Y. Mem. 51, no opinion. 13. When the Transfer Takes Place. The Court of Appeals, in the Matter of Seaman, 147 N. Y. 69-76, in referring to the time when a transfer takes place under subdivisions 1 and 2 of section 1 of the Act of 1892, which are the same as subdivisions 1 and 2 of section 220 of the Act of 1896, and corre- sponding section of the Act of 1905, says that the first and second subdivisions aforesaid embrace transfers of property, by will or intestate laws, of residents or nonresidents, and that " so far, the transfers take place necessarily at the moment of death, for the will on the one hand and the intestate laws on the other operate and speak from that date, and any special provision about that was needless." THE LAW OF TAXABLE TBANSFEKS. 25 14. When Tax Attaches to Legacy. It is apparent that the decision in the Matter of Seaman (supra) is not controlling in the general broad view that a transfer of personal property to a legatee by will takes place at the moment of the decedent's death, as the Appellate Division, in the Matter of Wolfe, 89 App. Div. 349, 85 N. Y. S. 949 ; affd. on opin- ion below in 179 N. Y. 599, held that no taxable trans- fer to a certain legatee had been made under a dece- dent's will where the legatee, eight months after dece- dent's death, renounced his legacy, as in that case the tax would be imposed not upon the transfer, but upon the attempt to transfer. The court, referring to the opinion of Judge CuUen in the Matter of Gihon, 169 N. Y. 443, says: " Per- sonal property does not pass directly from the de- ceased to his legatee, or next of kin, but all that such legatee or next of kin takes is what may be coming to him from the estate on distribution after settlement." The Appellate Division further says : " If no trans- fer is effected because it turns out that there is no property to transfer, no tax can be collected, and if the legatee renounces the gift and refuses to receive it, no tax can be collected with respect to him, because there has been no transfer to him. His right to renounce the privilege of accepting the donation is not denied or forbidden by the statute, and such right is recog- nized 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 considera- tion." 26 THE TBANSFEB TAX LAW. 1 5. 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 posses- sion or enjoyment at or after the death of the grantor, the devolution of title is subject to the tax. Matter of Greenp, 153 N. Y. 223. 16. 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 un- certainty who will take the remainder, although it is uncertain when the legatee will receive the legacy. Matter of Sloane, 154 N. Y. 109. 17. When Legal and Equitable Title Vests. Where property is bequeathed to a mother for life with remainder to a sister, the entire legal and equi- table 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. 18. 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. 19. Meaning of Provision "When Person Becomes Benefici- ally Entitled," Etc. Subdivision 3 of section l.of the Act of 1892 (now subdivision 4, section 220), which provides that THE LAW OF TAXABLE TBANSFEES. 27 " when any such person or corporation becomes bene- ficially 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 actu- ally 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 ac- crued before the statute came into existence. 20. Meaning of the Word " Estate " Prior to Act of 1892. 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. Eep. 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. 21. To What the Word " Deed " Refers to in this Act. The word ' ' deed ' ' as used in this act has no refer- ence to conveyance of property by such an instrument made in the ordinary course of business for a valuable consideration, but is confined to conveyances of real property, intended as gifts, and it is also quite evident 28 THE TBANSFEB TAX LAW. that it was intended to eliminate any technical distinc- tion between gifts of real property and personal prop- erty, 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. Eep. 180, 49 N. Y. S. 450; affd., 43 App. Div. 624. 22. 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 pro- vides for the distribution of the surplus of the per- sonal 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. Eep. 220, 221, 79 N. Y. S. 382. 23. 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 de- ceased nephew and niece, all of such persons having sprung from the intestate's deceased brother, the grandnephews are entitled to receive their parent's THE LAW OF TAXABLE TKANSFEBS. 29 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 col- laterals 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." 24. Equitable Convei'sion — Could ITot be Invoked. 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 taxa- tion, 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. S. 448. 25. 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 30 THE TRANSFER TAX LAW. will directed that his real estate be converted iato per- sonalty, 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 hus- band. Held, that the interest in the proceeds of the real estate to which the daughter (Mrs. Mills) was en- titled, 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 hus- band, 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 pos- sessed of a right to a distributive share in the pro- ceeds of real estate which her father's executor was directed to sell. Her legatee could not, in law, have given a deed of it, nor have reconverted it without the interposition of equitable rules. It was subject to the payment of debts, expenses of administration, general legacies, executors commissions, and the ex- penses primarily payable out of the personalty. 26. Renunciation of Legacy — Tax is Then Upon the TJltimate Sevolution. Section 242 (post) defines a transfer as including the passing of property, or an interest therein, in pos- session or enjoyment, present or future, by inherit- ance, descent, devise, bequest, grant, deed, bargain, sale, or gift, and under the rule of strict construction the transfer tax is not laid on the property trans- ferred, nor on the estate of the legatee, but merely on the transfer itself; and, with respect to legatees who THE LAW OF TAXABLE TBANSFERS. 31 renounce their legacies, no tax can be collected, but the succession thereupon becomes taxable in accord- ance with the ultimate devolution of the property. In the Matter of Wolfe, 89 App. Div. 349, 85 N. Y. S. 949; affd. on opinion below, in 179 N. Y. 599, the tes- tator by his will bequeathed $20,000 absolutely to his executors, who were unrelated to him. The residue of his estate he gave to his executors in trust for his surviving children. The executors, some eight months afterward, by instruments in writing, renounced and released the said bequest, but did not name any one in whose favor such renunciation was made. There was no claim in this case that the executors, by their renunciation, were attempting to evade the payment of the transfer tax at the higher rate. The surrogate of Orange county assessed a transfer tax on this bequest of $20,000 to the executors at 5 per cent., such bequest being in addition to their commis- sions, upon the ground that the legacy to the execu- tors became subject to tax immediately upon the death of the testator, and that they could not defeat the right of the State to that tax or any part of it, by any subse- quent act of theirs. Citing Matter of Seaman, 147 N. Y. at p. 69; Matter of Greene, 153 N. Y. at p. 223. The Appellate Division, in reversing the order of the surrogate, held that the force of this view might be convincing if the tax was upon the legacy, but that it was greatly weakened by the consideration that the tax is not imposed upon the property at all, although payable out of it, but is imposed upon the succession to, or transfer of, the property, and that the word " transfer " as defined in the statute means the pass- 32 THE TEANSFER TAX LAW. ing of property in possession or enjoyment, and until there was such a passing of property in possession or enjoyment there was no transfer, as otherwise the tax would be imposed, not upon the transfer, but upon the attempt to transfer. This necessarily implies that there must be some act of volition, upon the part of the legatee, equal at least to an acceptance of the legacy before the State is entitled to the tax. The court says, however, that a different question would be presented by a transfer operating under the laws of inheritance or descent, as in such case the transfer is effected by operation of law, and calls for no act of volition on the part of the heir or next of kin. CHAPTER III. Taxable Transfebs — Peopebty and Interests Tax- able. 27. Taxable transfers. 28. The word " property " is not limited to the definition thereof under the General Tax Law. 29. " Personal property " as de- fined by the Statutory Con- struction Law. 30. What shall be deemed assets of the estate. 31. When person becomes "bene- ficially entitled," etc. 32. Money deposited in bank to pay debt owing to a nonresident decedent. 33. Personal property wherever sit- uated is taxable. 34. When administered upon with- out the State. 35. Residence of beneficiary not material. 36. Note of legatee, included in be- quest of residuary estate. 37. Judgment in favor of decedent against heir or legatee. 38. Land devised subject to a mort- gage. 39. Debts due from a legatee. 40. Interest of decedent in surplus fund in partition suit. 41. Bequest for masses. 42. Good-will of business. 43. Legatee dying before receiving his legacy; when same is taxable. 44. Annuity to an executor and trustee is taxable. 3 45. Insurance policy payable to de- cedent's executors, etc. 46. Shares of stock in joint-stock association. 47. Stocks of foreign corporations. 48. A bequest to the United States is taxable. 49. Agreement between partners does not create joint ten- ancy. 50. Legacy in payment of debts for services. 51. Legacy to widow in lieu of dower is taxable. 52. Seat or membership in New York Stock Exchange. 53. United States bonds prior to Act of 1892 and after March 21, 1898. 54. Stock pledged as collateral to loan; redeemed is taxable. 55. Legacy absolute in terms; al- though shown by extrinsic proof to be imposed with a trust. 56. When a taxable bequest will be deemed created; law phrases unnecessary. 57. Debts owing by resident to non- resident decedent. 58. Deposit with trust company al- though certificates therefor are held without this State. 59. Deposits with banker to protect a margin. 60. Profits, when taxable. 61. Leasehold interests in land. 34 THE LAW OF TAXABLE TRANSFERS. 67. Id.; "mother or daughter.'' 68. Promissory note payable to husband and wife. 69. Bond and mortgage; held by husband and wife jointly. 70. Taxability of an estate; what law determines. 71. Legacy in lieu of dower is not a debt of the estate. 62. Money loaned is not an ad- vancement. 63. Fund held for grantor's life, re- serving power to dispose of same by will. 64. Savings bank deposits; in trust, etc. 65. Id.; joint accounts; husband and wife. , 66. Id. ; where " either or the sur- vivor may draw." Reference to other taxable transfers, including the property of non- residents, see Chapters V, VI, and VII. 27. Taxable Transfers. [§ 220, Tax Law.] A tax shall be and is hereby imposed upon the transfer of any property, reaP or personal,^ of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise,* to per- sons or corporations not exempt by law from taxation on real or personal property, in the following cases : 1. When the transfer is by will or by the intestate laws of this state from any person dying seized or possessed of the property while a resident of the state. 2. When the transfer is by will or intestate law, of prop- erty within the state, and the decedent was a nonresident* of the state at the time of his death. 3. When the transfer is of property made by a resident or by a nonresident when such nonresident's property is within this state, by deed, grant, bargain,® sale or gift made in con- templation of the death* of the grantor, vendor or donor, or 1. Chap. 41, Laws 1903 — in effect March 16 of that year. — First taxes transfer of real property to 1-per cent, class. 2. Chap. 215, Laws 1891 — in effect April 20 of that year. — First taxes transfers of personal property to 1-per cent, class. 3. Chap. 713, Laws 1887 — in effect June 25 of that year. — Included property transferred " in trust or otherwise." 4. Chap. 713, Laws 1887 — in effect June 25 of that year. — First law taxing property in this State of nonresident decedents. 5. Chap. 399, Laws 1892 — in effect May 1 of that year. — Added the word "bargain" to subdivision 3 of section 1 (now § 220). 6. Chap. 215, Laws 1891 — in effect April 20 of that year. — First taxes transfer " made in contemplation of death." PBOPEBTY AND INTERESTS TAXABLE. 35 intended to take effect in possession or enjoyment at or after such deathJ 4. When any such person or corporation becomes bene- ficially 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.* 5. Whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this act, such appointment when made shall be deemed a transfer taxable under the provisions of this act in the same manner as though the property to which such appointment relates be- longed absolutely to the donee of such power and had been bequeathed or devised by such donee by will ; and whenever any person or corporation possessing such a power of appoint- ment so derived shall omit or fail to exercise the same within the time provided therefor, in whole or in part, a transfer taxable under the provisions of this act shall be deemed to take place to the extent of such omission or failure, in the same manner as though the persons or corporations thereby becoming entitled to the possession or enjoyment of the prop- erty to which such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time of such omission or failure.® 6. The tax imposed hereby shall be at the rate of five per centum upon the clear market value of such property, except as otherwise prescribed in the next section.'" 7. Chap. 483, Laws 1885 — in eflFect June 30 of that year. — Taxes transfers made by deed, grant, sale, or gift " to take effect at or after death " of donor, etc. 8. Chr.p. 399, Laws 1892 — in effect May 1 of that year. — Section 1 first contained this provision. 9. Chap. 284, Laws 1897 — in effect April 16 of that year. — Added subdivision 5 to section 220, relative to transfers upon exercise of power of appointment. 10. Chap. 483, Laws 1885 — in effect June 30 of that year. — Sub- stantially enacted this provision and it has since been retained in each amendment or re-enactment of the statute effecting taxable trans- fers. 36 THE LAW OF TAXABLE TBANSFEKS, 28. The Word " Property " is Not Limited to the Definition Thereof Under the General Tax Law. Subdivisions 3 and 5 of section 2 of the General Tax Law of the State of New York (chap. 908, L. 1896) de- fines what shall be included in the terms " land," " real estate," and " real property," also the terms " personal estate " and " personal property." The courts have held, however, that these definitions did not limit the property, the transfer of which is sub- ject to taxation under the law taxing taxable transfers. In the Matter of Knoedler, 140 N. Y. 377, the court says: " The argument is made that it is only prop- erty which is liable to taxation under the General Tax Law of the State which can be taxed under the act relating to taxable transfers, * * *. The Taxable Transfer Law has no reference or relation to the gen- eral law. The two acts are not in pari materia. While the object of both is to raise revenue for the support of the government, they have nothing else in common. Nearly sixty years intervened between the passage of the earlier and the later statute, and the latter was enacted under different conditions from the former. It taxes the right of succession to prop- erty, and measures the tax in the method specifically prescribed. All property having an appraisable value must be considered, whether it is such as might be taxed under the general law or not. Many kinds of property might be enumerated which are not assess- able under the general law, but which are appraisable under the Collateral Inheritance Act." PBOPEETY AND INTERESTS TAXABLE. 37 29. " Personal Property " as Defined by the Statutory Con- struction Law. As defined by the Statutory Construction Law (L. 1892, chap. 677, § 4), the term " personal property " includes " chattels, money, things in action, and all written instruments themselves as distinguished from the rights or interests to which they relate, by which any right, interest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, wholly or in part, and everything, except real property, which may be the subject of ownership." Matter of Jones, 172 N. Y. 575, 585; Matter of Dun, 40 Misc. Bep. 509, 82 N. Y. S. 802. 30. What Shall be Deemed Assets of the Estate. " The statute has declared what shall be deemed assets of the estate of a deceased person .and subject to distribution by his executors or administrators (4 R. S., 8th ed., p. 2556, § 6), and includes among them choses in action and * every other species of personal property and effects.' " Matter of Knoedler, 140 N. Y. 377-379. The court in this case said, in answer to the con- tention of the appellants that life insurance policies were not property of which the testator dies seized and possessed at the time of his death: " But it must be admitted that they were obligations to pay money at a future date, and every instrument duly executed and having a lawful consideration, which secures to the holder the payment of money at a specified time, con- fers upon him a right of property." 38 THE LAW OF TAXABLE TRANSFERS. 31 . When Person Becomes " Beneficially Entitled," Etc. Under Transfer Tax Law (L. 1896, chap. 908, as amended by chap. 284, L. 1897), section 220, subdi- vision 4, providing that the transfers shall be taxable when any person becomes beneficially entitled in pos- session or expectancy to any property or the income thereof — property which passes under a father's will to his son, who dies before a settlement of the father's estate, which property is afterward delivered to the son's executor — is, when so delivered, subject to a transfer tax. Matter of Clinch, 44 Misc. Eep. 190, 89 N. Y. S. 802; affd., 99 App. Div. 298, 90 N. Y. S. 923; affd., 180 N. Y. 300. 32. Money Beposited in Bank to Fay Bebt Owing to a Non- resident Becedent. Money due a nonresident, who, owing to serious ill- -ness was unable to transact business, was given to his secretary in payment of the debt, and by him deposited in a bank in New York city as a special account in the creditor's name, where it remained until after the creditor's death. Held, that the money was subject to the creditor's order at the time of his death, and the creditor having died without affirming or disaffirming the transaction, and his estate having received the special deposit as money due from the bank, the law would so treat it, and hence it was subject to a transfer tax in this State. Matter of Daly, 100 App. Div. 373, 91 N. Y. S. 858; affd., 182 N. Y. , no opinion. 33. Personal Property Wherever Situated is Taxable. The personal property of a resident decedent, whether situated within or without this State, is tax- PBOPEKTY AND INTERESTS TAXABLE. 39 able. Matter of Swift, 137 N. Y. 77; Matter of Corn- ing, 3 Misc. Rep. 160, 23 N. Y. S. 285. 34. When Administered TTpon Without the State. Personal property of a resident decedent located without the State is taxable, although it was admin- istered upon by a foreign executor, and the property passed to foreign heirs or next of kin. Matter of Ding- man, 66 App. Div. 228, 72 N. Y. S. 694. 35. Residence of Beneficiary Not Katerial. Whether the beneficiaries reside in this State or elsewhere, it is not important as affecting the taxa- bility of the property transferred. Matter of Greene, 153 N. Y. 223. 36. ITote of Legatee, Included in Bequest of Residuary Estate., Where a bequest of the residuary estate includes a note made by the legatee, the amount thereof is tax- able. Matter of Tuigg, 2 Con. 633. (Decision, Act of 1887.) 37. Judgment in Favor of Decedent Against Heir or Legatee. A judgment against an heir or legatee in favor of the decedent should be appraised. Matter of Smith, 14 Misc. Rep. 169, 35 N. Y. S. 701. 38. Land Devised Subject to a Mortgage. A devisee of land which is subject to a mortgage takes it cum onere, and the equity therein is only liable to taxation. Matter of Kene, 8 Misc. Rep. 102, 29 N. Y. S. 1078. 40 THE LAW OF TAXABLE TBAKSPEES. 39. Debts Due from a Legatee. Where testator gives his estate for life to his wife, and at her death directs that the whole thereof, includ- ing the indebtedness of two sons for moneys thereto- fore lent and advanced to them, shall be divided among his children, the appraiser should include in his valuation of the estate the indebtedness due from such sons, although they are two of the seven residuary legatees. Matter of Bartlett, 4 Misc. Rep. 380, 25 N. Y. S. 990. 40. Interest of Decedent in Surplus Fund in Partition Suit. The deceased, an infant about sixteen years old, left her surviving a father, brother, and sister, and o\med at the time of her death an interest in a fund deposited to the credit of a partition action to which she was a party. Held, that her interest in such fund, although the proceeds of the sale of land, was not real property, and therefore was not exempt from taxation under the Act of 1892. Matter of Stiger, 7 Misc. Eep. 268, 28 N. Y. S. 163. 41. Bequest for Hasses. It was held in the Matter of Black, 1 Con. 477, 5 N. Y. S. 452, that a bequest to be used for saying masses was taxable, unless it was included in the funeral expenses, but the practice has been to consider such a bequest as a part of the funeral or testamentary expenses, especially so where the testator makes that direction by his will, or the amount given for that pur- pose is reasonable, and such amounts are accordingly deducted from the gross estate before the tax is ascer- tained. PROPERTY AND INTERESTS TAXABLE. 41 42. Good- Will of Business. The good- will of a newspaper conducted by a joint- stock association is property which passes under the will of the deceased member, and the value thereof should be included in determining the amount of his estate, subject to such transfer tax. Matter of Jones, 69 App. Div. 237, 74 N. Y. S. 702; revd. on another point, 172 N. Y. 575. The Court of Appeals having held that the defini- tion applicable to " property " as defined in section 242 was declared to " include all property or interest therein," and the Statutory Construction Law (L. 1892, chap. 677, § 4) having defined " personal prop- erty " as "including * * * everything, except real property, which may be the subject of owner- ship," the good-will of the business of a firm is tax- able, where the decedent was the sole owner of the firm and his will transferred the business. Matter of Dun, 40 Misc. Eep. 509, 82 N. Y. S. 802. The firm name of a partnership under which it has done business for many years does not inure to the surviving partner, but is a part of the good-will of the firm, and subject to sale in the same way as other firm property. Slater v. Slater, 175 N. Y. 143. 43. I«gfttee Dying Before K«ceiving His legacy — ^When Same is Taxable. Where a person is entitled to a legacy or distribu- tive share in the estate of a decedent, but dies before the same has been paid to him, said legacy or share when received by the executors of the legatee's estate 42 THE LAW OF TAXABLE TEANSFEKS. is subject to appraisal and taxation in accordance with the disposition made thereof by the will of the de- ceased legatee or, in case of intestacy, by the statute. Matter of Clinch, 180 N. Y. 300. 44. Annuity to an Executor and Trustee is Taxable. Testator by his will provided that his executor and trustee should be paid from his estate the sum of $1,500 annually, together with the commissions al- lowed by law, as long as he shall act as such executor and trustee, the same to be received by him in full compensation for any and all services, legal or other- wise, which he should render decedent's estate. Held, that the annuity so bequeathed was subject to a trans- fer tax under the provisions of section 227 of the Tax Law (now § 226) ; that the fact that the annuity may be presumed to have been given in payment for serv- ices to be rendered does not change the law upon this question, as the annuity, whatever its purpose, was a transfer by the will of the decedent. Matter of Ruber, 86 App. Div. 458, 83 N. Y. S. 769, citing Matter of Gould, 156 N. Y, 423. 45. Insurance Eolicy Payable to Decedent's Executors, Etc. A policy of insurance upon the life of a decedent held by him at the time of his death, payable to his executors, administrators and assigns, or to his per- sonal representatives, is property, owned by him at his death within the meaning of the Collateral In- heritance Act of 1887, and so, under that act, is sub- ject to appraisal and taxation. Matter of Knoedler, 140 N. Y. 377. PROPERTY AND INTERESTS TAXABLE. 43 46. Shares of Stock in Joint-Stock Association. * The shares of a joint-stock association constitute personal property and are taxable as such, irre- spective of the character of the property represented thereby, whether real or personal, and the interest of a deceased shareholder in the realty of a joint-stock association is personal property, and under chapter 215, Laws of 1891, a bequest thereof is subject to the transfer tax. Matter of Jones, 172 N. Y. 575. 47. Stocks of Foreign Corporations. Stocks of foreign corporations held by an executor as such are to be regarded as part of the estate and so the right to succession thereto is subject to payment of the tax imposed by said act. Matter of Merriam, 141 N. Y. 479-485. 48. A Bequest to the United States is Taxable. The United States is to be regarded as a body politic and corporate, and so far as this State is concerned, it is a foreign, not a domestic, corporation. (Code Civ. Proc, § 3343, subd. 18.) Under section 1, chapter 399, Laws of 1892, which imposes a tax upon the transfer by will or intestate law of any property of the value of $500 " to persons or corporations not exempt by law from taxation," a bequest to the United States is subject to the tax so imposed. Matter of Merriam, 141 N. Y. 479; Matter of Cullom, 145 N. Y. 593. 49. ^:reement Between Partners Does Not Create Joint Tenancy. An agreement between partners that they were *' jointly " interested in all real and personal prop- 44 THE LAW OF TAXABLE TBANSFEES. erty heretofore held or now or hereafter held in the joint name or individual name of either of them, places the property referred to in the position simply of partnership property, and does not create a strict joint tenancy therein under which, on the death of one of the partners, the property would pass to the sur- vivor, and the surrogate was right in refusing to allow the sum of $250,000, or any amount, for the alleged claim of the surviving partner to the whole assets of the firm. Matter of Wormser, 51 App. Div. 441-443, 64 N. Y. S. 897. 50. Legacy in Payment of Debt for Services. The transfer by will, subjected to taxation by the Act of 1892, is not limited to property gratuitously given by will, but extends to a testamentary transfer in payment of a debt. It matters not what the motive of a transfer by will may be, whether to pay a debt, discharge some moral obligation, or to benefit a rela- tive. If the devise or bequest is accepted by the bene- ficiary, the transfer is made by will, within the mean- ing of the Transfer Tax Act. Matter of Gould, 156 N. Y. 423 ; Matter of Doty, 7 Misc. Rep. 193, 27 N. Y. S. 653. 51. Legacy to the Widow " in Lieu of Dower " is Taxable. A legacy given the testator's widow in lieu of dower, if accepted by her, is taxable for the reason that there has then been a transfer to her by will. Matter of Riemann, 42 Misc. Rep. 648, 87 N. Y. S. 731, following Matter of Gould, 156 N. Y. 423. PROPERTY AND INTERESTS TAXABLE. 45 52. Seat or Membership in New York Stock Exchange. A seat or membership in the New York Stock Ex- change of a nonresident of the State of New York upon the death of such nonresident is subject to a transfer tax in this State. Matter of Curtis, 31 Misc. Eep. 83; Matter of Glendinning, 68 App. Div. 125, 74 N. Y. S. 190; affd., 171 N. Y. 684. To the same effect Matter of Hellman, 174 N. Y. 254; revg. 77 App. Div. 355, 79 N. Y. S. 201. The later decision was subse- quent to revision of the Tax Law, and the consolida- tion of the previous legislation into a single statute — chapter 908, Laws of 1896. 53. United States Bonds Prior to Act of 1892, and After March 21, 1898. It was established prior to the Act of 1892 that transfers of United States bonds were subject to the tax. Matter of Howard, 5 Dem. 483; Matter of Car- ver, 4 Misc. Eep. 592, 25 N. Y. S. 991; Matter of Tuigg's Estate, 15 N. Y. S. 548. A transfer of United States bonds which took place after March 21, 1898, the date on which chapter 88, Laws of 1898, took effect, is taxable, although the bonds were issued under an act which provided that they should be exempt from taxation by the United States and " from taxation in any form by or under State, municipal, or local authority." Matter of Plummer, 30 Misc. Eep. 19, 62 N. Y. S. 1024; affd., 47 App. Div. 625, 62 N. Y. S. 1145, 161 N. Y. 631; Plvm- mer v. Coler, 178 U. S. 115. 46 THE LAW OF TAXABLE TRANSFERS. 54. Stock Fledged as Collateral to Loan — Bedeemed is Tax- able. A pledge redeemed by the pledgor's executor is tax- able against the pledgor's estate. Where the executor of a resident decedent who pledged her stock in a domestic bank as collateral to a loan made to her by said bank, pays off the loan and redeems the stock, it becomes presently taxable as a part of her estate because the pledgee no longer has any interest in it which requires protection. Matter of Hurcomb, 36 Misc. Rep. 755, 74 N. Y, S. 475. 55. Legracy Absolute in Terms — Although. Shown by Ex- trinsic Proof to be Imposed With a Trust. An executor who, under the will, takes a third of the residuary estate absolutely unincumbered by any trust imposed by the will itself, is not relieved from payment of the inheritance tax imposed by the Col- lateral Inheritance Tax Law (chapter 713, Laws of 1887) by the fact that in an action brought to obtain a judicial construction of the will, it is held as a result of extrinsic evidence that he took the legacy imposed with a trust in favor of the testatrix's brother. Mat- ter of Edson, 38 App. Div. 19, 56 N. Y. S. 409; affd., 159 N. Y. 568. 56. When a Taxable Bequest Will be Deemed Created — Law Phrases Unnecessary. To constitute a bequest it is not essential that a testator use the word " give " or the word " be- queath " or any word of similar significance. Matter of Thompson, 5 Dem. 393. PKOPEBTY AND INTERESTS TAXABLE. 47 The testator by the first clause of his will provided in part as follows : "I hereby direct my executors hereinafter named, to withdraw one-half of each of the claims and demands which have been presented by me or on my behalf, to the executrix of the will of my deceased brother, * * * and not to collect any more than one-half of the same from said executrix, and I hereby forgive one-half of said claims and demands against my said brother's estate." Held, that the ex- pression " I forgive one-half," etc., amounts to a be- quest of that half, and does not relieve any part of the whole sum from taxation, but has the effect of making the tax on that one-half assessable to the exec- utrix as such and not to her as an individual. Matter of Wood, 40 Misc. Eep. 155, 81 N. Y. S. 511. 57. Debts Owing by Eesident to Nonresident Decedent. Debts owing by a resident to a nonresident decedent constitute property within this State within the mean- ing of the statute and are taxable. Matter of Daly, 100 App. Div. 373-382 ; affd., 182 N. Y. , no opinion. 58. Deposit with Trust Company Although Certificates There- for Are Held Without this State. Where the decedent had deposited sums of money with two trust companies in New York city and re- ceived from said companies certificates for such de- posits, respectively, which he held at his home without this State at the time of his death, held taxable. Mat- ter of Hewitt, 181 N. Y. Mem. 45, affg. 98 App. Div 624, 90 N. Y. S. 1100. 48 THE LAW OF TAXABLE TRANSFERS. 59. Deposit with Bankers to Protect a Margin. A deposit by a nonresident with a firm of New York brokers as a margin with which to protect the nonresident's interests in the purchase of stock, is taxable upon the death of the nonresident, where the money has remained on deposit after the stock trans- action, and was used by the bankers in their business. Matter of Daly, 100 App. Div. 373, 182 N. Y. , no opinion. 60. Profits when Taxable. Profits permitted to remain on deposit with the firm are to be included in the taxable assets. Matter of Probst, 40 Misc. Eep. 431, 82 N. Y. S. 396. 61. Leasehold Interests in Land. The term " personal property " is now used in the sfetutes to designate chattels, and every species of property which is not real estate, and, therefore, a leasehold interest in land, being a chattel, is subject to taxation as personal property under the Transfer Tax Law. Matter of Althause, 63 App. Div. 252-256, 71 N. Y. S. 445; affd., 168 N. Y. 670. 62. Money Loaned is ITot an Advancement. Money loaned by testator to his children and which he directed should be included in his estate and di- vided equally among all his children, the loans to be deducted from the share of the children to whom the same were made, are not advancements but legacies subject to tax. Matter of Bartlett, 4 Misc. Rep. 380, 25 N. Y. S. 990. PHOPEETY AND INTERESTS TAXABLE. 49 63. Fund Held for Grantor's life Beserving Power to Dispose of Same by Will. A fund held by a trust company under a revocable trust to pay the income to the testator for life and at his death the principal to be turned over to the ap- pointees named in his will, or to his next of kin, if such appointment is not made, is taxable as the prop- erty passes under the will of the grantor. Matter of Ogsbury, 7 App. Div. 71, 39 N. Y. S. 978. 64. Savings Bank Deposits — In Trust, Etc. A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust, during the lifetime of the depositor. It is a tentative trust, merely, rev- ocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or ilec- ; laration, such as delivery of the pass-book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. Matter of Totten, 179 N. Y. 112-126, revg. same case, 89 App. Div. 368, 85 N. Y. S. 928. It has been the practice to consider money deposited in trust by a decedent who retained the bank-book dur- ing his lifetime, and withdrew interest and principal, and added thereto from time to time, as a gift of prop- erty of the decedent intended to take effect at or after i death, and therefore taxable. This question is now on 4 50 THE LAW OF TAXABLE TBANSFBKS. appeal to the surrogate of Rensselaer county in the Matter of the Charlotte E. King Estate. In the Matter of Sheedy, N. Y. Law Journal, May 25, 1905, Surrogate Thomas, upon an accounting in this estate, held that, upon all the facts shown, the sum of $3,000 deposited by the decedent in the Bowery Sav- ings Bank to the credit of " Patrick Sheedy in trust for Joanna Sheedy," was a part of the decedent's es^ tate. * * * That the rights of the beneficiary are at most conditional and defeasible, and do not become effectual or complete until, on the death of the depos- itor, his power to revoke the trust is gone (citing Mat- ter of Totten, 179 N. Y. 112), and if the beneficiary designated is not then alive the initiated trust is alto- gether at an end, and the fund passes to the legal rep- resentatives of the depositor. 65. Id. — Joint Accounts — Husband and Wife. The most frequent deposits of this nature are where a deposit is made in a savings bank in the joint name of husband and wife, payable to either, and the courts have held that, where the money was the husband's, the act of depositing it in the joint name of himself and wife would indicate an intent to vest in the wife title to the money should she survive him. Whitlock v. Bowery Savings Bank, 36 Hun, 460 ; Piatt v. Grupp, 41 Hun, 477 ; Wortmann v. Robinson, 44 Hun, 357. In the Matter of Augsbury v. Shurtleff, 180 N. Y. 138, it was held that an instrument executed by husband and wife addressed to a savings bank, in which each had a separate account, requesting that their accounts be merged, so as to run to either or to the survivor of PEOPEETY AND INTEEESTS TAXABLE. 51 them, constitutes an order that their accounts bq, changed so as to make each the joint owner of the entirety, so that, upon the death of one, the survivor would become the owner of the whole ; it is executory, however, until presented to the bank and the changes made, and consequently, where one of the parties died before the order had been complied with, it was held that the instrument did not create either a gift inter vivos or a gift causa mortis of the fund belonging to the deceased party. 66. Id. — Where " Either or the Survivor May Draw." An entry in a savings bank pass-book representing moneys deposited by a husband, reading "Albany Sav- ings Bank in account with Mrs. A. P. B. or J. C. B.j her husband, or the survivor of them," constitutes the par- ties joint owners of the deposit, and entitles the wife, if she survives her husband, to take the deposit, and it is not necessary to the validity of the gift that the pass- book should be delivered to the wife. McElroy v. Albany Savings Bank, 8 App. Div. 46, 40 N. Y. S. 422; McElroy v. National Savings Bank, 8 App. Div. 192, 40 N. T. Si 340. Where the husband dies survived by his wife, the taxability of deposits of this nature, as being a gift to take effect at or after the decedent's death, has not been passed upon. In the Matter of Hallenbeck v. Hallenbeck, 103 App, Div. 109, it appeared that, several years prior to dece- dent's death, she delivered to the savings bank a writ- ten direction to add the name of her niece, as owner and creditor of the moneys on deposit or which might thereafter be deposited by her, so that either or the 52 THE LAW OF TAXABLE TEANSFEBS. survivor might draw the funds in part or in whole, and a new pass-book was issued, which read, ' ' Huldah Van Aernam or Huldah B. Hallenbeck. Pay to either or the survivor of either. In account with Albany County Savings Bank, Albany, N. Y." It was held that the form of the account invested Huldah B. Hallenbeck with a prima facie title to the money deposited therein, ^nd that before such prima facie title could be de- stroyed there must be a finding that the change in the account was made for some other purpose than to pass title ; for example, for the convenience of Huldah Van Aernam in making withdrawals ; that, if there was an understanding that such transfer and change of ac- count was in payment for services, such consideration, however slight, was good as between the parties and j)assed irrevocable title to the fund. To the same effect, see Kelly v. Home Savings Bank, 103 App. Div. 141, where it was held that, with respect to alleged gifts of, or trusts created in, savings bank accounts, unless there is a clearly expressed transfer or trust agreement showing the interest of the donor or trustee, whenever there is an apparent attempt to make a gift or create a trust, the interest of the alleged donor or trustee is a question of fact to be determined after an examination of all the circumstances in each case. 67. Id. — " Mother or Daughter." Where the decedent deposited a sum of money in a savings bank, in an account entitled " Julia Cody or daughter Bridget Bolin," and the pass-book came into the hands of the daughter, who thereafter retained it PKOPEETY AND INTERESTS TAXABLE. 53 during her mother's life, it appearing that the mother, because of infirmities, was the object of solicitude and care, the court held on the accounting, wherein the daughter claimed the deposit as a gift, that the facts did not authorize the inference of a gift or a transfer of title. Matter of Bolin, 136 N. Y. 177. To the same effect, Wood v. Zornstorf, 59 App. Div. 538, 69 N. Y. S. 241. 68. Promissory Note Payable to Husband and Wife. In the Matter of Sanford v. Sanford, 45 N. Y. 723, the court holds that if one, in loaning money, takes a promissory note therefor, payable to the order of him- self and his wife, this imports a gift to the wife in case she survives him, and delivery of the note to her by the husband is not necessary to perfect the gift. Dur- ing the husband's life such note remains subject to his control, and the wife has no legal interest therein until his decease. Judge Peckham says : " The note being payable to husband and wife jointly belonged to the wife as survivor. * * * Taking this note in the name of himself and wife shows that the husband in- tended thereby to give it to her in case she survived him, and a delivery to her was unnecessary to perfect the gift. Assuming this to be so, yet during the life of the husband the note is subject to his control and disposition. The wife has no legal interest in it until his decease." See also Fowler v. Butterly, 78 N. Y. 68-72. If there is no- transfer of a legal interest in this gift during the husband's life, it would seem that property so held could only be considered a gift, to take effect 54 THE LAW OF TAXABLE TEANSFEES. at or after the donor's death, and would therefore be liable to taxation. €9. Bond and Mortgage — Held by Husband and Wife Jointly. Where a husband and wife each furnished half of the amount of a loan and took as security therefor a bond and mortgage payable to them jointly, — held, that, upon the death of one of them, the interest of the decedent vested, not in the survivor, but in the personal representatives of the decedent. Matter of Albrecht, 136 N. Y. 91. The court says : ' ' We are aware that tliere are many authorities holding that where the husband pur- chases a security or makes a deposit, or subscribes for stock in the joint name of himself and wife and pays therefor with his own funds, upon his death the entire security belongs to the wife if she survives him. But the decision in all these cases is put upon the ground that it is apparent from the character of the transac- tion that the husband intended to give the property to his wife in the event of her survivorship, and hence the transfer possesses all the essential qualities of a gift causa mortis, which he may revoke in his lifetime and which does not take effect until his death if not previously recalled. While he lives his control ov&r it is unlimited and at his death it becomes her absolute property, if she survives him, but if she does not the gift is not consummated, and the husband retains the entire title. * * * But if the husband and wife each contribute to a joint investment or to the purchase of a security and the title is taken in their joint names to be held by them, their executors, administrators, or PROPERTY AND INTERESTS TAXABLE. 55 assigns, as was the bond and mortgage in the present case, no presumption can properly arise from the na- ture of the act that either intended to make a gift of his or her share to the survivor." 70. Taxability of an Estate — What law Detennines. The taxability of an estate is to be determined by the law in existence at the date of the transfer, not- withstanding a subsequent alteration of the law. Mat- ter of Goelet, 78 N, Y. S. 47; Matter of Davis, 149 N. Y. 539. 71. legacy in lieu of Dower is Not a Debt of th« Estate. The decedent bequeathed to his wife the sum of $10,000, and also devised to her a certain house and lot in New York city. He provided that the gifts to his wife should be in lieu and bar of dower as follows : " I expressly declare the foregoing bequest and de- vise to my said wife to be, with the provisions already made for her, in lieu and full satisfaction of all dower * * *." Subsequent to making the will, the testator conveyed to his wife all real estate which by his will he had devised to her. The widow accepted the pro- visions of the will in lieu of her dower, and contention was made that the legacy of $10,000 was not taxable, as it was in effect an obligation or debt on the part of the estate as the consideration for the release of the dower right of the widow, which was not taxable. The court held the legacy of $10,000 taxable, saying : "If the construction of the appellants was correct, a dower right which is an interest in real estate not subject to a tax, or to the testator's disposition, could be dis- 56 THE LAW OF TAXABLE TRANSFERS. charged of the personal property and thus the State would lose the benefit of the tax. If such a proposition were sound, it would be an easy way for testators to obviate the taxes upon gifts of personal property to their wives by simply making the gift as a considera- tion for a release of dower in the real estate. ' ' Matter . of DeGraaf, 24 Misc. Rep. 147, 53 N. Y. S. 591. Reference to other taxable transfers, including the property of non- resident decedents, see chapters V, VI, and VII. CHAPTEE IV. Taxable Tbansfeks — Property and Interests not Taxable. (§ 220, Tax Law.) 72, 84. Proceeds of gratuity fund of New York Produce Ex- change. Fund provided by will to pay annuity created by trust company. Real property without this State not taxable. legacy to be taxable must be paid from property of dece- dent. Legacy to a corporation not in existence. Legacy is a naked right until reduced to possession. 90. Transfer of property by ante- nuptial agreement. Property transferred by reason of contract obligations, held not taxable. Advancements. Remainders and reversions un- der the earlier law. 94. Chose in action; when taxable. 95. Is the widow's dower taxable? 96. Curtesy. Reference to other nontaxable transfers, including the property of nonresident decedents, see chapters V, VI, and VII. 72. Accrued Eights — Prior to Transfer Tax Law. Bights " accruing " under a trust deed executed prior to the enactment of the Transfer Tax Law, whether such rights are vested or contingent, are not taxable. Matter of Craig, 97 App. Div. 289, 89 N. Y. S. 971; affd., 181 N. Y. Mem. 49. [57] Accrued rights ; prior to Trans- fer Tax Law. 73. Estates vested, prior to the Transfer Tax Law. Increase accruing after dece- dent's death. Bequest for burial plot. Interest or share of a decedent in an undistributed estate. 77. Legacy to executors subject to a trust. Legacy; given in consideration of a home. Absolute bequest with preca- tory words in favor of ex- empt corporations. United States bonds between May 1, 1892, and March 21, 1898. Stocks pledged as collateral to a loan. Legacy to a brother chargeable on land. 83. Articles mentioned in section 2713 of the Code. 74. 75. 76. 78. 79. 80. 81. 82. 85, 86, 87, 88, 89, 91, 92. 93. 58 THE LAW OF TAXABLE TBANSFEBS. 73. Estates Vested Prior to the Transfer Tax Law. Interests in estates which became vested before the passage of the Transfer Tax Law are not taxable under said act. Matter of Travis, 19 Misc. Eep. 393, 44 N. Y. S. 349; Matter of Pell, 171 N. Y. 48. 74. Increase Accruing After Decedent's Death. Only the property of which a person dies seized or possessed is taxable, therefore the increase or interest accruing thereon subsequent to decedent's death is not taxable. Matter of Vassar, 127 N. Y. 1. 75. Bequest for Burial Plot. A bequest for purchase of or maintenance of the de- cedent 's burial lot has been held exempt as a part of the funeral expenses of the decedent. Matter of Vinot, 7 N. Y. S. 517; Matter of Edgerton, 35 App. Div. 125, 54 N. Y. S. 700; affd., 158 N. Y. 671. 76. Interest or Share of a Decedent in an Undistributed Estate. Where the personal estate of a decedent consisted only of her distributive share in the estate of a der ceased sister, no part of which came into the hands of the testatrix before her death, held, that such por- tion of the decedent's estate was not taxable. Matter of Thomas, 3 Misc. Rep. 388, 24 N. Y. S. 713. See also Matter of Phipps, 77 Hun, 325, 28 N. Y. S. 330; Matter of Zefita, 167 N. Y. 280. 77. Legacy to Executors, Subject to a Trust. Where the testatrix bequeaths all her property to her executor individually, agreeing with him at the time PEOPEBTY AND INTERESTS NOT TAXABLE. 59 the will was executed that the bequest shall be in trust for decedent's brother, such a trust is within the ex- emptions of the statute which provides for the payment of taxes upon gifts, legacies, and collateral inherit- ances, and the executor would therefore not be liable for the tax. Matter of Farley, 15 N. Y. St. R. 727-729. Decision under Act of 1885. 78. Legacy — Given in Consideration of a Home. Under the Act of 1887, where a testatrix by will gave all her property to her nephew, in consideration of a home for her at his house during her life, it was held that the property given to the nephew by the will as a legacy was really in satisfaction of a claim which he might enforce as a creditor against the estate of the testatrix, and therefore is a payment and not a gift, and is not subject to the collateral inheritance tax. Matter of Hulse, 39 N. Y. St. R. 402. Decision under Act of 1887, 15 N. Y. S. 770. A similar bequest would now be held taxable in view of the decision of the Court of Appeals in In re Gould, 156 N. Y. 423. 79. Absolute Bequest with Precatory Words in Favor of Ex- empt Corporations. Where, after an absolute bequest, the decedent in his will immediately follows such bequest with preca- tory words of desire or recommendation, that the de- vise and bequest, and all the proceeds thereof be ap- plied to certain corporations exempt under the Trans- fer Tax Law from taxation, such bequest is not tax- able where it is shown that the clause in question was 60 THE LAW OF TAXABLE TBANSFEES. inserted in tlie will on the express agreement that the bequest shall be so applied. Matter of Murphy, 4 Misc. Eep. 230, 25 N. Y. S. 107. See Matter of Edson, 38 App. Div. 19, 56 N. Y. S. 409, where a legacy, absolute , in terms, but impressed by extrinsic proof with a trust, was held taxable. 80. United States Bonds Between Kay 1, 1892, and Karch. 21, 1898. The transfer of United States bonds was not sub- ject to the provision of the Transfer Tax Law be- tween the 1st day of May, 1892, and the 21st day of March, 1898, owing to the provision of section 22 of the Act of 1892 (now section 242, as amended), which . contained the phrase ' ' property * * * over which , this State has any jurisdiction for the purpose of taxa- tion." Matter of Whiting, 150 N. Y. 27; Matter of Sherman, 153 N. Y. 1. Since March 21, 1898, such bonds are taxable. Mat- , ter of Plummer, 30 Misc. Eep. 19, 62 N. Y. S. 1024; affd., 47 App. Div. 625, 62 N. Y. S. 1145, 161 N. Y. 631, 178 U. S. 115. 81 , Stocks Fledged as Collateral to a Loan. Stocks pledged by the decedent with brokers as col- ' lateral security for a loan, the title thereto passes to the brokers, and where the stocks sell for less than the loan no proceeds thereof can pass to the decedent's estate, and therefore no transfer tax can be assessed on account of the stock. Matter of Eavemeyer, 32 Misc. Eep. 416, 66 N. Y. S. 722. See also Matter of ■ Pullman, 46 App. Div. 574, 62 N. Y. S. 395. If pledged PEOPEKTY AND INTERESTS NOT TAXABLE. 61 stocks are redeemed by the executors they are then liable to tax. Matter of Hurcomb, 36 Misc. Eep. 755, 74 N. Y. S. 475. 82. Legacy to a Brother Chargeable on Land. A legacy to a brother, chargeable upon decedent's real estate, is an interest in land and is not taxable. 'Matter of Cheesebrough, 34 Misc. Rep. 365, 69 N. Y. S. 848 (citing Matter of Sutton, 3 App. Div. 208, 38 N. Y. S. 277; Matter of Offerman,.25 App. Div. 94, 48 N. Y. S. 993). Decisions prior to chap. 41, Laws 1903. 83. Articles Mentioned in Section 2713 of the Code. In view of the declaration of Code of Civil Proce- dure, section 2713, that if a man having a family dies, leaving a widow or a minor child, the articles enu- merated in said section ' ' shall not be deemed assets, ' ' but shall belong to her ; they form no part of his estate and are not subject to the transfer tax, whether or not they were actually set apart to her by the appraiser. Matter of Page, 39 Misc. Eep. 220, 79 N. Y. S. 382. But where the husband dies and does not leave the specific articles enumerated in said section 2713 of the Code, the widow is not entitled to the cash value of said articles iu lieu thereof. Matter of Libolt, 102 App. Div. 29. 84. Proceeds of Gratuity Fund of New York Produce Ex- change. The proceeds realized from the gratuity fund of the New York Produce Exchange are not taxable, as they 62 THE LAW OF TAXABLE TBANSFERS. are payable to the beneficiaries entitled thereto by virtue of the by-laws of the Produce Exchange relat- ing to the manner of distribution, and therefore are transferred, not by the will of the decedent or by the statute, but by virtue of the contract of the deceased with the exchange. Matter of Fay, 25 Misc. Eep. 468, 55 N. Y. S. 749. 85. Pund Provided by Will to Pay Annuity Created by Trust Agreement. Where a husband had, through a trustee, agreed to pay his wife a life annuity, accompanied by the option to her of demanding at his death from his estate, and in substitution of such annuity, a gross sum calculated upon the expectancy of her life as will discharge pro- spective payments of the annuity, his creation by will of a trust to continue the annuity in case she refuses to accept the gross sum is not, if she fails to exercise her option, subject to tax, as the will transfers nothing to her. Matter of Daniell, 40 Misc. Eep. 329, 81 N. Y. S. 1033. 86. Heal Property Without this State Not Taxable. Real property of the decedent situated out of this State is not subject to appraisal, and where the dece- dent owned real property without the State, and di- rected his executors to sell such real property for the purpose of paying legacies and making distributions, the doctrine of equitable conversion cannot be invoked to subject the property or the proceeds of sale thereof to taxation. Matter of Swift, 137 N. Y. 77. PROPERTY AND INTERESTS NOT TAXABLE. 63 87. legacy to be Taxable Must be Paid From Property of Seeedent. Where a legatee procured from the executors the amount of her legacy, giving such executors an assign- ment thereof, and it subsequently appears that the legacy was paid from the executors' own money, and that the testator's estate was insufficient to pay the said legacy, — held, that, as the legatee was not paid from funds of the estate, the legacy was not taxable as against her, nor was it taxable against the estate of the executor (who had subsequently died) on the amount paid to the legatee. Matter of Weed, 10 Misc. Rep. 628, 32 N. Y. S. 777. 88. IAiot Esq., attorney for the petitioner herein, it is Ordered: That the cash value of the property referred to in the petition herein, the transfer of which is subject to the tax imposed by the law relating to taxable transfers of property and the tax to which each of said transfers are liable, respectively, is as follows : Cash Value Amount Legatee or Distributee. Relationship. of Interest. of Tax. Surrogate. POEMS. 427 PETITION SHOWING ESTATE TO BE EXEMPT. (§ 230, Tax Law.) The same form of petition can be used in an application for an order declaring an estate to be exempt from taxation as that used in an application for appraisal and determination of tax by the surrogate without referring the appraisal of the estate to the official appraiser or county treasurer. (See Form on page 425.) {Notice of such application should he given the State Comptroller.) ORDER EXEMPTING ESTATE. (§ 231, Tax Law.) At a Surrogate's Court, held in and for the county of at the surrogate's office, in the of on the day of , 190 . . Present — Hon , Surrogate. SURROGATE'S COURT — County of In the Matteb of the Appbaisal of the Estate OF , Deceased, Undeb the Acts in Relation to the Taxable Tbansfebs op Pbopebty. Upon reading and filing the verified petition of , wherein it appears that the decedent above named died on the day of , 190 . . , a resident of the county of and State of , and that the transfer of the property of said decedent is not subject to tax under the law relating to taxable trans- fers of property, and that due notice of this application was given to , Esq., attorney for the State Comptroller (or to the State Comptroller personally). Now, on motion of , Esq., attorney for the petitioner herein, it is Obdebed: That the transfer of property of which said decedent died siezed and possessed and mentioned in said petition is exempt from tax under the law relating to taxable transfers of property. Surrogate. 428 FOBMS. DISTRICT ATTORNEY PROCEEDINGS — PETITION. (§ 235, Tax Law.) SURROGATE'S COURT — County of In the Matteb of the Apfbaisal of the Estate OF , Deceased, Undeb the Acts in Relation to the Taxable Tbansfebs of Pbopebty. To the Surrogate's Court of the County of : The petition of respectfully shows : First: That your petitioner is the district attorney of the county of , in the State of New York, and your petitioner further alleges upon in formation and belief: Second : That on or about the day of , 190 .. , the above-named decedent died a resident of the county of , State of Third: That thereafter proceedings were duly instituted in the Sur- rogate's Court of the county of to have the amount of tax upon the transfers of the property of said decedent fixed and deter- mined, as provided by the law relating to the taxable transfers of the property of decedents, and that an order was entered by the surrogate of the county of in such proceedings on the day of , 190. ., fixing and assessing the transfer tax therein at the sum of dollars. Fourth: Your petitioner further shows that eighteen months have elapsed since the accrual of said tax, and that the State Comptroller has notified your petitioner in writing of the refusal or neglect of the persons liable therefor to pay the said tax and the interest due thereon, and that no part thereof has been paid {eaecept, etc., where some legatee has paid the tax on his individual transfer) and your petitioner be- lieves that the same still remains due and unpaid. Wherefore your petitioner prays that a citation issue under the seal of this court directed to , the executor (or adminis- trator) of said estate, and to , the persons or corporations liable to taxation upon the transfers of the property of said decedent to them respectively, as appears by the taxing order, entered herein, as aforesaid, citing them, and each of them, to appear before this court on a certain day to be designated therein and show cause, if any they have, why the tax and interest under the law relating to the taxable transfers of property should not be paid. Dated the day of 190. . District Attorney of the County of (Add verification.) FORMS. 429 ORDER GRANTING CITATION. (§ 235, Tax Law.) At a Surrogate's Court, held in and for the county of at the surrogate's ofBce, in the of on the day of , 190 . . Present — Hon , Surrogate. SURROGATE'S COURT — Coukty or In the MATTE3B OF THE APPRAISAL OP THE ESTATE or , Deceased, Under the Acts in Relation to the Taxable Transfers of Property. On reading and filing the verified petition of , district attorney in and for the county of , bearing date the day of , 190, it is Ordered: That a citation issue herein in accordance with the prayer of said petitioner. • f Surrogate. CITATION TO SHOW CAUSE. (I 2355, Tax Law.) The People of the State of New York : By the grace of God, free and independent, to . . . . ( emecutors or administrators of, etc.), and to , greeting: You, and each of you, are hereby cited and required personally to be and appear before the surrogate of the county of , at the Surrogate's Court in and for said county, held at on the ...... day of , 190. ., at o'clock in the noon of that day, then and there to show coAise why the transfer tax upon the transfer of the property of the above-named decedent, and upon your, and each of your, shares or interests respectively, pursuant to chapter 908 of the Laws of 1896 and the acts amendatory thereof and supplementary thereto, should not be paid, ^hich ta,x has been duly fixed and assessed by order of the surrogate of the county of , made and entered the day of ., 190. ., together with the interest thereon, which is now due, and unpaid. 430 roEMs. And such of you hereby cited as are under the age ol twenty-one years are required to appear by your guardian, il you have one, or, if you have none, to appear and apply for one to be appointed; or in the event of your neglect or failure to do so, a guardian vifill be appointed by the surrogate to represent and act for you in this proceeding. In Testimony Whereof we have caused the seal of the Surrogate's Court of the county of to be hereunto affixed. Witness, Hon , surrogate of the county of [L. s.] , at the day of , 190.. Clerk of the Surrogate's Court. DECREE DIRECTING PAYMENT. At a Surrogate's Court, held in and for the county of at the surrogate's oflSce in the of on the day of , 190. . Present — Hon , Surrogate. SURROGATE'S COURT — County op In the Mattee of the Appbaisai. of the Estate OF Deceased, Undeb the Acts in Relation to the Taxable Tbansfees of Peopebty. Upon the petition of the district attorney, heretofore filed herein on the day of , 190.., and the report of the ap- praiser, and the order entered thereon on the day of 1905, fixing and assessing the tax upon the transfers of the property of the above-named decedent, and after hearing , Esq., on behalf of Hon , district attorney, in support of said petition and upon all the papers and proceedings herein, and (no one appearing in opposition thereto or) , attorney for herein, having appeared Jn opposition thereto, it is ObdBEED: That , the (eoeecutor or administrator) herein make payment forthwith to the State Comptroller of the sum of dollars, being the amount of tax upon the interests of together with interest upon each of said sums respectively, at the rate of ten per cent, per annum, from the day of , 190. ., to the date of payment {or) Obdebed : That {reciting a direction similar to the foregoing that each legatee or distributee shall pay forthiaith the taa and interest assessed upon the transfer to him individuall]/) . FORMS. 431 And It Is Fuethee OBDfiBED: That said {eoiecutor or administrator) pay to Hon district attorney, the sum of dol- lars, as and for his costs and disbursements herein; (or) And It Is Fubtheb Ordered: That Hon , district attor- ney, is allowed the sum of dollars, as and for his costs and disbursements herein, to be paid forthwith by the above legatees or distributees in proportion to the amount of tax due and owing by each respectively, and in addition to said tax and interest. Surrogate. (The form of decree directing payment in district attorney proceed- ings is new since the amendM,ent of section 235 hy chapter 368 of the La/ws of 1905, now providing that these proceedings cannot be com- menced UNTIL AFTER TBE EXPIRATION OF EIGHTEEN MONTHS from the accrual of the tax, etc. If the determination of the surrogate should be that the proceedings should be dismissed the foregoing form can be easily modified accordingly.) AFFIDAVIT FOR APPRAISAL OF THE PROPERTY OF NON- RESIDENT DECEDENTS. (§ 230, Tax Law.) SURROGATE'S COURT — County of In the Matter of the Appraisal of the Estate OF , Deceased, Under the Acts in Relation to the Taxable Transfers of Property. STATE OF ,) . CoTmTY OF j ■ ■ , being duly sworn says : First : That he resides at , and that the above-named dece- dent died on the day of , 190.., a resident of in the State of , and that thereafter letters testamentary (or letters of administration) were issued to deponent by the " Court of the county of , State of , on the day of , 1905, and deponent thereupon entered upon the discharge of his duties as such (eaiecutor or administrator), and that he is still acting as such (executor or administrator). Second: That Schedule A, hereto annexed, and made a part hereof, contains an itemized statement of all the property, real and personal, of which the said decedent died seized or possessed, situated withm the State of New York, including the shares of stock of all New York corporations, debts owing to decedent by debtors residing m the State of New York, certificates of deposit, choses in action, or other property. 432 FORMS. Third: That Schedule B, hereto annexed and made a part hereof, contains, an itemized statement pf all the personal property; owneid^by said dee'edeut, 6itua;ted -t^itliout the State of N'e* Ybrk. Fourth: Said decedent, at the time of his death, had no safe-de- posit box, individually or held jointly in the name of the decedent and one or more persons within the State of New York, in which was de- posited bonds, public or private, ' mortgages, money, or any evidences of debt whatsoever; that he was not carrying on any business or inter- ested in any copartnership within the State of New York; that he owned no shares of stock of national banks situated therein, and did not own any jewelry, horses,; carriages, furniture,, or otlier . items of personal property of any nature or kind whatsoever m said State, except as fully set forth in said Schedule A, hereto annexed. (// the decedent exercised a power' of appointment over any property within this State, the fa^ts should he fully stated here.) ,-■ Fifth: That prior to his death the said decedent .made no transfer of property within the State of New York by deed, grant, bargain, sale, or gift made in contemplation of death or intended to take effect in pos- session or enjoyment at or after death. {State whether any person or persons became entitled to any remainder or reversion in property icithin this State hy reason of thg decedent's death.) ■ Sixth: That the fair market value of the decedent's entire per- (lonal estate, wheresoever situated, at the time of .hi^ death, was , dollars. ' Seventh: That Schedule C, hereto annexed, and made a. part hereof, cpntains an itemized statement of the funeral expenses and expenses of administration incurred and to be incurred by the representatives of Ba,id estate: Also an itemized statement showing the valid debts due and owing by decedent at the time of his death, and the commissions to which I am entitled as (executor or adniinistratpr) by the, laws of the State of '. . Eight)); That all the persons interested in! .said estate are of full age and sound mind, except. . . ..... . . . . . , . . . ; . : . . . . . .'. Ninth.; [When decedent left a vnll.) That Schedule D, annexed hereto, and made a part hereof, contains a fiiH and true copy of the decedent's last will and testament. {When decedent (jKed intestate.) That ,ay the persftns who are en- titled to share in the estate of said decedent, together with their rela- tionship, places of residence, and the share or interest pf each are as follo^? : NttTti* of Distributee. Belationship. Place of Resiaenoe. fn^rert *. Executor or Administrator. Bworn to before me, this day of , 190,. Notary Public. .{Oqunty clerk's eertifieate should he attached.) FOBMS. 433 PETITION FOK APPSAISAt — MONRESIDEM T DECEDENT. ({ 230, Tax Law.) SURROGATE'S COURT— Cotott of In THE Matteb of the Afpbaisjx of the Estate OF , Deceased, Uin)EB the Acts in Relation to the Taxable Tbansfebs of Profebtt. To the Surrogate's Court of the County of : The petition of respectfully shows ; First: That he is (the executor, administrator, or other interested person, including the State Comptroller), and as such is interested in the estate of the above-named decedent. Second: That, as petitioner is informed and believes, the above- named decedent died on or about the day of , 190. ., a resident of , in the county of , and State of , and at the time of his death he was seized and possessed of property in the county of , in the State of New York, all or some part of which is subject to taxation under the laws relating to the taxable transfers of property, to the value of and upwards of (ten. thousand dollars, or where it passes to collaterals, in whole or in part, five hundred dollars). Third: That your petitioner is informed and believes that said decedent (died intestate, or) left a last will and testament which was thereafter and on or about the day of 190 . . , duly admitted to probate by the Court of the county of , , State of , by the terms of which said de- cedent appointed of the executor of his said will, and the said is still acting as such executor. Fourth: That, as deponent is informed and believes, no application has been made for ancillary letters upon the estate of said decedent in the county of or any other county in this State, and that no proceeding has been brought by the representatives of said decedent to fix and determine the tax upon the transfers of the property of said decedent within this State at the time of his death, although application has been, or is about to be, made by such representatives to remove such property from the State of New York without first having the transfer tax thereon determined and paid. Fifth: That (where decedent left a will) attached hereto is a copy of the decedent's will; (where the decedent died intestate) attached hereto is an affidavit of the foregoing administrator of said decedent showing. Sixth : That all the persons who are interested in said estate, and 28 434 FORMS. who are entitled to notice of all proceedings herein and their addresses, are as follows: Comptroller Albany, N. Y. Seventh: {Where application is made on hehalf of the State Comp- troller.) That attached hereto, and made a part hereof, is the affidavit of the executor (or admimstrator) , showing in detail the facts herein- before stated. Wherefore your petitioner prays for the entry of an order herein, directing the appraisal of the property of the above-named decedent, as provided by law. Dated (Albany, N. Y.), , 190. . Petitioner. (Add verification.) ORDER DESIGNATING APPRAISER — NONRESIDENT DECEDENT. (§ 230, Tax Law.) (The order designating appraiser in case of resident decedents can be used in designating an appraiser of the property of nonresident decedents, with slight change where reference is made to the petition upon which the order is granted. See Form on page 411.) AFFIDAVIT Required by the State Comptroller upon Application for the Removal or Transfer of the Property of a Nonresident Decedent, where Transfer Tax Proceedings have not been Instituted. (i 227, Tax Law.) ■ Application to the Comptbolleb op the State of New York Fob Consent to Tbansfeb Certain Pbopebtt Beiongino to Late a Resident of Application is made to the Comptroller of the State of New York for consent to transfer the following property belonging to the above- FOEMS. 435 named nonresident decedent, pursuant to section 227 of the Transfer Tax Law of the State of New York, namely: Present value. 100 shares Erie common stock, par value, $100, at $ Deposit in the Albany Savings Bank , Total $ (4.K fhe property tDithin this State should he set forth, ineluding stocks of New York corporations, etc., as required hy the followiinff affidavit, to te attached to such application:) STATE OF NEW YORK, | County of , j"**"' , being duly sworn, says: {the affidavit should show the following facts) : Name of decedent — date of death, and decedent's late residence. Name and address of the executor or administrator, and whether ancillary letters have been applied for in this State or not. Shares of stock of various New York corporations owned by the decedent. Bonds, foreign and domestic, physically present within this State at the time of decedent's death. Bank stock, and cash on deposit in any sayings bank or other institu- tion in this State. Also certificates of deposit issued by any bank, trust company, or other institution in this State. Policies of insurance upon the life of such nonresident issued by corporations of this State and payable to the decedent or his legal representatives. Notes or other evidences of indebtedness owing such nonresident by residents of this State. Whether the decedent was interested in any partnership, or carried on any business within this State, and if so, the nature and location thereof. Also whether the decedent was entitled to any legacy or share of an estate, the nature, amount, and particulars in reference thereto. If the nonresident decedent exercised a power of appointment over any property within this State, that fact shall be fully set forth, also whether any remainder or reversionary interest passed under any prior will, or any transfer to any one in possession or enjoyment, as the result of the decedent's death. Real property in this State owned by decedent, giving a brief descrip- tion of each parcel, and the estimated value thereof, after deducting any incumbrances thereon. Any property, real or personal, or any interest therein, other than the above within the State of New York, and the values thereof. Whether the decedent made any transfer of property within this State in contemplation of death or intended to take effect in possession or enjoyment at or after his death. The names, residence, and relationship of all persons receiving any portion of the decedent's property and the amount, or other interest therein, whether such persons are residents of this State or not; also the character of any corporation of the State of New York, or any other State, to and for the use of wiiich any part of the stock of New Y6tk corporations — the proceeds from the. sale thereof or any othev 436 FOBMS. property within this State, will be transferred by reason of the will of said decedent. Sworn to before me, this day of 190.. t Notary Public {or other officer before whom affidavit is made). {Although not required at present, it is heat to attach a county clerk'i ^ertifioate to this affidamit, When the person making the affidavit is in douit as to whether a certain corporation in which the decedent owned shares of stock is a Jfew York corporation or not, such fact should be set forth, giving the name of the corporation, the number of shares — par value — amd the market value thereof at the time of decedent's death. If, from the foregoing affidamt, it appears that the estate of the decedent is exempt from taxation under the laws of this Btate, consent will be given at once for the transfer of the particular property set forth. If it appears from the affidavit that the estate or some part thereof is taaahle, the State Comptroller will cause proceedings to be instituted in the proper county, to ha/ve the tax fixed and assessed by the surrogate, and this proceeding is WITHOUT EXPENSE to the nonresident estate, the representatives being only required to furnish the necessary affidavits in order to properly present the facta to the surrogate.) AGKEKMKNT — UPON COMPOSITION OF TRANSFER TAX. (§ 233, Tax Law.) SURROGATE'S COURT — County of In the Mattes of the Appbaisai, of the Estate OF , Deceased, Undeb the Acts in Relation to the Taxable Tbansfebs of Pbopebtt. Whebeas, The above-named died on the day of , 190. ., a resident of the county of and State of , leaving a last will and testament which was duly admitted to probate in the Surrogate's Court of the county of , and letters testamentary were thereupon issued to , of , New York. And Whebeas, Transfer tax proceedings were thereafter regularly instituted in the Surrogate's Court of the county of , and by order of Hon , surrogate of said county of , made and entered the day of , 190 . . , Esq., was directed to appraise the property of said decedent pursuant to the provision of the law relating to the taxable transfers of property. EOBMS. 437 and the report of such appraiser waa filed iiir the office .pi the surro- gate aforesaid, and an order entered thereupon on the . i . , , . day of , 190 . . , fixing and assessing a transfer tax upon eertain transfers of said decedent's property at the sum of $..,,.., And WHEBEA.S, Decedent by the clause of his will provided as follows : , And Whebeas, It appears from the report of said appraiser that in view of the foregoing provision (or provisions) of said decedent's will it was impossible to presently determine the value of the estate or property transferred. to j....; at the time of the decedent's death, and that the appraisal thereof was therefore postponed until the value of said transfers.could.be definitely determined (or- mch other facts hy reason of which the present tapoaiility, of the transfer has been heretofore held for future appraisal, it appearing: that, the remainders or expectant estates icere of such a nature, or so disposed and circumstanced, that the tawes thereon were held, not present payable, or where the interests of the legatees or devisees were not ascertainable as provided in section 233',of tfce Taai Lami And Whebeas, The said (executor or trustees) above named are now desirous of personally settling. the remaining claims of the people of the State of New York upon or in respect to the transfers of the property or estates, and the tax thereon which may now be due and payable, or which may hereafter become payable, under the laws of the State of New York, and by compounding all such taxes upon terms which are equitable and expedient, andthat said eicecittor or truste,es be granted a discharge upon the payment of the taxes provided fot in this composition agreement in pursuance of the law in such case made and provided. Now, Tkebefobs:, In.considers^tion of the foregoing: It IS Hebebt StipulatSI) ' AND AGREED :' That the' transfer tax in respect to be, and the same hereby is ascertained, fixed, compounded, and adjii^ted at the sum of dollars ($ ), which sum it is agreed shall be accepted by the Hon. , as Comptroller of the State of New York, by and with the approval of the Hon , Attorney-General of the State of New York, in full payment, satisfaction, and discharge of all transfer taxes which are payable, or which, but for this agreement, might at any time hereafter becoine due'aiid payable to the State of New York, under or by virtue of the laws thereof, upon or in respect to the transfers of the property. or estate of the above-named decedent which are mentioned and referred to as, compromised, and which have become fully settled and adjusted by the execution of this composition agree- ment, as provided by section 233 of this Transfer Tax taw. In Witness Whebbof, the said {executor or trustees), under the will of the said , deceased, and Hon , Comptroller of the State of New York, have signed and acknowledged the execution of these presents in triplicate, this .;..;;;. day of , 190.. ' ■' i; V ... , [L. S.J ..;......., [L. S.] Approved, this diay «f ,., ...,190.. , , . • » ', • > ' Attorney-General. (Add acknowledgments py, th^ representatives of the estate, and Btdte Comptroller^) , , , 438 FOKMS. CERTIFICATE Of Comptroller Showing Payment of Tax upon Seal Estate BdongiBg to Decedent. (§ 236, Tax Law.) STATE OF NEW YORK, Comptbolleb's Office. E. f In the Matter of the Appbaisal of the Estate OF - , Deceased, JJnder the Acts in Relation to the Taxable Tbansfeks of Pbopebtt. Albany, N. Y., , 190. . I, , Comptroller of the State of New York, do hereby certify that it appears from the records of this office that upon the report of , appraiser in and for the county of , in the State of New York, a duplicate copy of which report was filed an this office on the day of , 190. ., an order was -made by Hon , surrogate of county, on the day of , 190. ., assessing a transfer tax upon the "transfers of the property of said , who died a resident of on the day of , 190 .. ; that the •amount of said tax assessed, as aforesaid, was the sum of $ , a part of which sum is the tax assessed upon the transfer of cer- tain real estate, or which the above-named decedent died seized and which is described and appraised in the report of said appraiser as foDows, namely : And I further certify tliat the amount of said tax {less the discount for payment icithin six months from the accrual thereof; or, together with interest thereon at the rate of per cent, per annum from the accrual thereof, where not paid within eighteen months) has been fully paid by {the executor or administrator ) of said estate, and that the final duplicate receipts showing such payment were issued under date of , 190. ., and that by reason thereof tho lien of the State of New York upon the real estate hereinbefore described, for tax {and interest) due upon the transfer thereof, has been fully satisfied and discharged. In Witness Whebeof, I have hereunto set my hand and affixed [L. s.] my official seal, this day of , 190 . . Comptroller. [If the tax upon the real estate uoas paid hy the devisee or heir-at- law the foregoing certificate will he modified accordingly. It would seem that the heir or devisee is not entitled to this certificate until the tax Ims heen assessed, although poA/ment on account thereof may have been made.) FOBMS. 439 APPLICATION TO JUSTICE OF SUPREME COURT FOR RE- APPRAISAL. (§ 232, Tax Law.) SUPREME COURT— County of In the Matteb of the Application OF Hon f State Comptboixeb, fob a Reappbaisal of THE PbOPEBTY OF Deceased, Under the Acts in Relation to the Taxable Tbansfebs of Pbopeety. To Hon , one of the Justices of the Supreme Court of the Judicial District : The petition of Hon respectfully shows : (1) That your petitioner is the Comptroller of the State of New York, and that the above-named decedent was a resident of , in the county of . , and State of New York at the time of his death, which said place is within the judicial district of the Supreme Court of this State. (2) That the said decedent died on the day of , 190.., and letters {testamentary or of administration) were issued by the surrogate of the county of to who were and are the duly qualified and acting {executors or admims- trators) of the estate of said decedent. ( 3 ) That proceedings have heretofore been instituted to determine the clear market value of the decedent's estate at the time of the transfer thereof and the liability of the transfers of said decedent's property to taxation under chapter 908 of the Laws of 1896 and the acts amendatory thereof and supplemental thereto, and upon the report of ._, Esq., the appraiser in such proceedings, an order was entered by the sur- rogate of the county of on the day of , 190. . {determining the value of decedent's estate to be the sum of $ , and exempting said estate or fixing and assessing the tax upon the transfers of said decedent's property, as follows : ) (4) lliat your petitioner is informed and believes that such ap- praisal {assessment or determination) was {fraudulently, collusiveh/, or erroneously made) owing to the following errors of fact, namely. (5) That two years have not elapsed since the entry of the order or decree of the surrogate determining the value of said estate and assess- ing the tax thereon (or exempting said estate from taxatum). 440 FOBMS. (6) That all the persons (or corporations) who are interested in said estate and who are entitled to notice of all proceedings herein, together with their post-office addresses or places of business, are as follows : Name. Interested as. P. O. Address. And that all of said persons are of full age and sound mind except Wherefore your petitioner prays for the appointment of some com- petent person to reappraise the estate of the above-named decedent, in accordance with the provisions of section 232 of the Tax Law. Dated, Albany, N. Y., , 190. . (Add vertification.) Petitioner. {The appointment of a competent person to act as appraiser, and the subsequent proceedings of said appraiser are in all respects similar to the proceedings before the surrogate in respect to the duties of such appraiser, and the foregoing forms may he followed with hut slight changes. The determination and assessment of such justice shall super- sede the previous determination wnd assessment of the surrogate, and shall he filed hy siich jttstice in the State Comptroller's office, and a certified copy thereof tramsmitted to the Surrogates Court of tha proper county.) AFFIDAVIT TO BE FILED UPON APPLICATION FOR LETTERS TESTAMENTARY OR LETTERS OF ADMINISTRATION. (§ 238, Tax Law.) SURROGATE'S COURT— Couhtt of In the Mattee of the Application fob Let- ters (Testamentary or of Administration) Upon the Estate OF Deceased. STATE OF NEW YORK, ) . County of , j being duly sworn, says: That he is the petitioner herein; that the above-named decedent died at the ........... of , in the county of , and State of New York, on'the day of , 190. . FOBMS. 441 That the estimated value of the real property in this State of which saio decedent died seized {less any mortgage inoumbranoe thereon) is dollars ($ ) . That the estimated value of the personal property of which said decedent died is pKOssessed is dollars ($ ) . That the following is a complete list of the names, residence, and re- lationship to decedent of all persons entitled to any legacy or share of the decedent's estate {and the names and plaoe of business of all corporations who are entitled to axvif legacy or devise under the will of said decedent), together with the character and value of such legacy, devise {or share) as far as the same can at present be de- termined : Name. P. O. Address. RelationsUp. Value. Petitioner, and executor named in decedent's will ( or petitioner, and person entitled to ad- minister upon decedent's estate.) Sworn to before me, this day of , 190.. Notary Public. NOTICE BY BANK OR TRUST COMPANY OF THE TRANSFER OF DEPOSITS. (g 227, Tax Law.) , 190.. Hon , State Comptroller, Albany, N. Y.: Deab Sib. — The {bank or trust company) pursuant to section 227 of chapter 368 of the Laws of 1905, hereby gives notice that on the day of , 190 . . , or earlier, upon receipt of your written consent, it will deliver or transfer the funds now on deposit to the credit of , who was a resident of the county of , State of , to , who is the duly qualified and acting executor {or administrator) of the estate of said decedent. The post-ofiSce address of the said executor {or administrator) is YourSj etc., > Secretary or Treasurer. Etc. 442 FOBMS. NOTICE OF THE INTENDED TRANSFER OF STOCK OF NEW YORK CORPORATIONS. (§ 227. Tax Law.) , 190.. Hon , State Comptroller, Albany, N. Y.: Deab Sir. — In compliance with section 227 of chapter 368 of the Laws of 1905, you are hereby notified that on , 190. ., or earlier, upon receipt of your written consent, I will transfer shares of the capital stock of , registered in the name of , now deceased, and whose late residence was at in the State of The executor (or administrator) of the above-named decedent is , whose post-office address is , State of If there is no objection to the proposed transfer kindly forward the usual consent. Yours, etc.. Secretary or other officer. NOTICE OF INTENDED DELIVERY OF CONTENTS OF SAFE-DE- POSIT BOX TO EXECUTORS, ETC. (§ 227, Tax Law.) , 190.. Hon , State Comptroller, Albany, N. Y. : Deab Sib. — This will notify you that , late a resident of the county of , in the State of , was (the individual or joint) lessee of a safety-deposit box in the vaults of ( hank or other institution) , and that application has been made by the (executors or administrators or the surviving lessee) for the delivery of the contents of said box, beloiiging to the above named decedent, to such (executor, administrator, or other person aforesaid), and that pursuant to section 227 of chapter 368 of the Laws of 1905 the (bank or other institution) aforesaid hereby notifies you that it will on the day of , 190 . . , at o'clock in the noon of that day deliver the contents of said safety-deposit box to the said ( executor, administrator, etc. ) . (In case of resident decedents.) Your consent for such delivery, with- out retaining a sufficient portion or amount thereof to pay any tax and interest which may be thereafter assessed upon the transfer of such property, is requested. Yours, etc.. FORMS. 443 NOTICE BY BANK OR TRUST COMPANY OF THE TRANSFER OF DEPOSITS IN THE JOINT NAUES OF A DECEDENT AND ONE OR MORE PERSONS, OR IN TRUST FOR ANOTHER. (i 227, Tax law.) 190.. Hon , State Comptroller, Albany, N. Y.: Beab Sir. — The ; ( hank or trust companp) , of , hereby gives notice that there is standing upon the books of this ( iank or triist company) a deposit amounting to $ in the name {or in the joint names) of (" John Doe or Richard Roe " — " John Doe {and) {or) Richard Roe, either or the survivor can draw" — "John Doe, in trust for Richard Roe" — or otherwise) and the officers of said {bank or trust company) are informed and believe that , one of the persons above named, has recently died, a resident of , in the county of and State of , and that on the day of , 190 . . , at o'clock, A. M., the said {hank or trust compamy) will, at the request of {the executor, administrator, cestui que trust, survivor, or other interested person) transfer or deliver the funds representing said deposit to the said {name the person making application therefor). Your consent to this transfer is desired pursuant to section 227 of chapter 368 of the Laws of 1905. . Yours, etc., TABLE OF CASES CITED. TABLE OF CASES CITED. Matter of: p^oe, Abbett, 29 Misc. Rep. 567, 61 N. Y. S. 1067 149 Aetna Ins. Co. v. Mayor, etc., 153 N. Y. 331 190 Albrecht, 136 N. Y. 91 54 Althause, 63 App. Div. 252, 71 N. Y. S. 445, affd., 168 N. Y. 670 48 Amherst College v. Ritch, 151 N. Y. 282 330 Anthony, 40 Misc. Rep. 497, 82 N. Y. S. 789 82 Arnett, 49 Hun 599, 2 N. Y. S. 428 250, 338 ,Astor, 17 N. Y. St. R. 787 256 Astor, 6 Dem. 413, 2 N. Y. S. 630 249, 261 Augsbury v. ShurtleflF, 180 N. Y. 138 50 Ayres v. Lawrence, 59 N. Y. 192 144 Babcock, 86 App. Div. 563, 83 N. Y. S. 1020 345 Babcock, 115 N. Y. 450 307, 308, 309 Babeock, 37 Misc. Rep. 445, 75 N. Y. S. 926, aflfd., 81 App. Div. 645, 81 N. Y. S. 1117 188, 192, 291 Baker, 83 App. Div. 530, 82 N. Y. S. 390, affd., 178 N. Y. 575 65, 74 Baldwin v. Rice, 100 App. Div. 241 232 Balleis, 144 N. Y. 132 181, 182 Baltzer v. North Carolina, 161 U. S. 240 213 Bartlett, 4 Misc. Rep. 380, 25 N. Y. S. 990 40, 48 Bartow, 30 Misc. Rep. 27, 62 N. Y. S. 1000 Ill, 115 Baucus V. Stover, 24 Hun 109 320 Baudouine, 5 App. Div. 622, 39 N. Y. S. 1121 324 Beach, 154 N. Y. 242 174 Becker, 26 Misc. Rep. 633, 57 N. Y. S. 574 322 Beckwith (not reported) 251 Beers v. Arkansas, 20 How. (U. S.) 527 213 Bender, 44 Misc. Rep. 79, 89 N. Y. S. 731 178 Bentley, 31 Misc. Rep. 656, 66 N. Y. S. 95 151, 342 Berry, 23 Misc. Rep. 231, 51 N. Y. S. 1132 321 Birdsell, 22 Misc. Rep. 180, 49 N. Y. S. 450, affd., 43 App. Div. 624, 60 N. Y. S. 1133 28, 73, 175 [447] 448 TABLE OF CASES CITED. Matter of: PAGE. Bishop, 82 App. Div. 112, 81 N. Y. S. 474 149, 159, 230, 25.1 Black, 5 N. Y. S. 452 311, 312 Black, 1 Con. 477, 5 N. Y. S. 452 40 Blackstone, 69 App. Div. 127, 74 N. Y. S. 508, afld., 171 N. Y. 682 137, 144, 148, 338 Blackstone v. Miller, 188 U. S. 189. . . . 120, 137, 144, 145, 322, 338 Bliss, 6 App. Div. 192, 39 N. Y. S. 875 13, 14 Bogert, 25 Misc. Rep. 466, 55 N. Y. S. 751 331, 344 Bolin, 136 N. Y. 177 53 BoUweber, N. Y. Law Journal, May 31, 1905 315 Bolton. 35 Misc. Rep. 688, 72 N. Y. S. 430 250, 261 Borup, 28 Misc. Rep. 474, 59 N. Y. S. 1097 80 Boatwick, 160 N. Y. 489 78 Bowditch V. Ayrault, 138 N. Y. 222 278 Brandreth, 28 Misc. Rep. 468, 59 N. Y. S. 1092 267 Brandreth, 169 N. Y. 437. 79, 81, 85 Brenner, 170 N. Y. 186 190 Brez, 172 N. Y. 609 4, 99, 187, 287, 297 Bronson, 150 N. Y. 1 125, 137, 154, 155, 265 Bruce, 59 N. Y. S. 1083 35S Brundage, 31 App. Div. 348, 52 N. Y. S. 362. .v, 176, 253, 308, 347 Brundage v. Village of Port Chester, 102 N. Y. 494 213 Buckingham, 105 App. Div. — , 94 N. Y. S. 130 100 Bullard, 76 App. Div. 207, 78 N. Y. S. 491 76 Burr, 16 Misc. Rep. 89, 38 N. Y. S. 811 150, 191, 322 Burr v. Palmer, 53 App. Div. 358, 65 N. Y. S. 1056 324 Bushnell, 73 App. Div. 325, 77 N. Y. S. 4, affd., 172 N. Y. 649, . 155 Butler, 58 Hun 400, 12 N. Y. S. 201, affd., 136 N. Y. 649. . 170, 172 Byrnes v. Stillwell, 103 N. Y. 453 278 Cager, 111 N. Y. 343 19, 27, 170, 279, 300, 391 Caiman, 100 App. Div. 517 318 Cameron, 97 App. Div. 436, 89 N. Y. S. 977, affd., 181 N. Y. Mem. 49 214, 331, 347, 360 Capron, 30 N. Y. St. R. 948, 10 N. Y. S. 23 177 Carlton v. Carlton, 72 Me. 115 144 Carver, 4 Misc. Rep. 592 45 Catlin V. Trustees of Trinity College, 113 N. Y. 133 183 Chamberlain v. Chamberlain, 43 N. Y. 424 68 CheeBebrough, 34 Misc. Rep. 365, 69 N. Y. S. 848 61, 63 Chicago, Rock Island &. P. R. R. v. Stearns, 174 U. S. 710. . . . 137 TABLE OF GASES CITED. 449 Matter of: page. Church of St. Monica v. Mayor, etc., 119 N. Y. 91 182 Clark, 40 Hun 233 68 Clark, 5 N. Y. S. 199 300 Clark, N. Y. Law Jorunal, Dec. 26, 1904 322 Clafk, 22 N. Y. St. E. 354, 5 N. Y. S. 199 301 Clarke, 39 Misc. Rep. 73, 78 N. Y. S. 869 293 Clark V. Sheldon, 106 N. Y. 104 8 Clinch, 44 Misc. Rep. 190, 89 N. Y. S. 802, 99 App. Div. 298, 90 N. Y. S. 923, 180 N. Y. 300 38, 42, 07, 134, 298 Cobb, 14 Misc. Rep. 409, 36 N. Y. S. 448 29 Collins, 104 App. Div. 184 333, 345 Conklin, 39 Misc. Rep. 771, 80 N; Y. S. 1124 15 Connelly, 38 Misc. Rep. 466, 77 N. Y. S. 1032 344, 354 Connoly, 38 Misc. Rep. 533, 77 N. Y. S. 1113. . . . 282, 285, 313 Coogan, 27 Misc. Rep. 563, 59 N. Y. S. Ill, affd., 45 App. Div. 628, 61 N. Y. S. 1144, 162 N. Y. 613 211, 354 Cooksey, 182 N. Y. 92 , 90, 101, 104, 106 Corhett, 171 N. Y. 516 14, 169; 178, 179 , Cornell, 66 A^p. Djv. 162, 73 N. Y. S. 32 (modified, 170 N. Y. 423) 339, 348 Cornell, 170 N. Y. 423 79, 81, 85 Corning, 3 Misc. Rep. 160, 23 N. Y. S. 285 39 Craig, 97 App. Div. 289, 89 N. Y. S. 971, afifd., 181 N. Y. Mem. 49 , , . 57, 82, 298, 299 Crary, 51 Misc. Rep. 72, 64 N. Y. S. 566 76, 263 Crerar, 31 Misc. Rpp. 481, 65 N. Y. S. 573, 56 App. Div. 479, 67 N. Y. S. 795 ...:'.. 201, 233, 262, 359 Crosby, 46 N. Y. St. R. 442, 20 N. Y. S. 62 . . 73 Cruger, 54 App. Div. 405, 66 N. Y. S. 636, aflfd., 166 N. Y. 602. . 80 Cullom, 145 N. Y. 593 43 Curtis,. 31 Misc. Rep. 83, 64 N. Y. S. 574 45, 141, 322 Curtis, 142 N. Y. 219 279, 300 Cushing, 40 Misc. Rep. 505, 82 N. Y. S. 795 155 Daly, 34 Misc. Rep. 148, 69 N. Y. S. 494 356 Daly, 100 App. Div. 373, 91 N. Y. S. 858, aflFd., 182 N. Y. no op 38, 47, 48, 142, 145, 151, 191, 322 Daniell, 40 Misc. Rep. 329, 81 N. Y. S. 1033 62 Darlington v. Mayor, etc., 2 Eobt. 277, affd., 31 N. Y. 164. .. . 10 Davenport, 172 N. Y. 454 29 Davis, 149 N. Y. 539 17, 55, 187, 195, 254, 267; 341 Davis, 98 App. Div. 546, 90 N. Y. S. 244. 172, 175, 176 29 450 TABLE OF CASES CITED. Matter of: page. DeGraaf, 24 Misc. Rep. 147, 53 N. Y. S. 591 56, 194, 321 Delano, 176 N. Y. 486 4, 94, 96, 113, 114 Demers, 41 Misc. Rep. 470, 84 N. Y. S. 1109 66 Dennison, N. Y. Law Journal, Aug. 17, 1903 175, 176 Dimon, 82 App. Div. 107, 81 N. Y. S. 428 215, 310, 312, 314 Dingman, 66 App. Div. 228, 72 N. Y. S. 694 39, 109, 339, 340 Doane, N. Y. Law Journal, March 12, 1903 313 Doty, 7 Misc. Rep. 193, 27 N. Y. S. 653 44 DowB, 167 N. Y. 227 93, 109, 113, 114, 115, 116 Dun, 40 Misc. Rep. 509, 82 N. Y. S. 862 37, 41 Earle, 74 App. Div. 458, 77 N. Y. S. 503 260, 262, 331, 358 Ebbets, 43 Misc. Rep. 575, 89 N. Y. S. 544 29 Edgerton, 35 App. Div. 125, 54 N. Y. S. 700, affd., 158 N. Y. 671 58, 66, 76, 86, 311, 312 Edson, 38 App. Div. 19, 56 N. Y. S. 409, affd., 159 N. Y. 568 46, 60 Edwards, 85 Hun 436, 32 N. Y. S. 901, affd., 146 N. Y. 380. . . 81 Embury, 19 App. Div. 214, 45 N. Y. S. 881, affd., 154 N. Y. 746 V, 123, 234 Enston, 113 N. Y. 174 '. 16, 121, 231, 246, 255 Parley, 15 N. Y. St. R. 727 ; 59, 206 Fay, 25 Misc. Rep. 468, 55 N. Y. S. 749 62 Fayerweather, 143 N. Y. 114 iv, 16, 195, 197, 246 Field, 36 Misc. Rep. 279, 79 N. Y. S. 512 254 Fisch, 34 Misc. Rep. 146, 69 N. Y. S. 493 170, 171 Fisher, 96 App. Div. 133, 89 N. Y. S. 102 16, 169, 392 Fiske, N. Y. Law Journal, Feb. 18, 1903 ; . . . . 283 Fitch, 26 Misc. Rep. 353, 57 N. Y. S. 212, 39 Ap^. Div. 609, 57 N. Y. S. 786, 160 N. Y. 87 . . . . . ..... 124, 163, 189, 232, 233 Flagg V. Bradford, 181 Mass. 315. .^ 212 Foreign Held Bonds Case, 15 Wall. 300 126 Fowler v. Butterly, 78 N. Y. 68 53 Fuller, 62 App. Div. 428, 71 N. Y. S. 40. ....:: 4, 239 Fult Tax Law) *.:••' '••••'•< 219, 221 PERSONAL PROPERTY: courts apply maxim moHla personam aeqvflmtwr, when with- out this State as to property of residents 120 defined by Statutory Construction Law 37 of nonresident decedents, when first taxable. 34 of nonresident not removed until after Act of 1892 '■••■, 123 of resident, is taxable wherever situated 38 when first taxable, passing to one per cent, class. 34, 165 POWER OF APPOINTMENT: accrual of tax on transfer subject to 187 appointee can elect, when 96 attempt to exercise, when not a taxable transfer 107, 113 character of property (real or personal) at time of exercise of, determined taxability 93, 114 decisions affecting transfers by , 112 decisions prior to amendment of 1897 117 defined under Real Property Law 89 distinction between powers created by will 106 effect of conferring a general power 89 equitable conversion, - could not be invoked when power was not exercised Ill erroneous payment on remainder subject to, not a payment made " in advance " 99 execution of the power gives property to appointee 90, 97 exercise of, applies equally to real or personal property , 90 exercise of, by donee, makes a gift. 89, 113 exercise of, over funds without this State 108 grantee with power to dispose, when entitled to an absolute fee. . < . .,, 112 no distinction as to method or date of creation , . . . . ,95, 113 object and purpose of the statute , , 90 omission, or failure to exercise ..,,,...., 116 payment of loan by exercise of , II5 powers created by deed.^.... ,., 94 powers created by will , . . , 91 provision not repealed by chapter 76, liaws 1^^9, amending section 230. . j,,,,,, ^..^ ,..,..,,,,,.,,.........., 115 GfiNEBAIi INDEX. 491 POWER OF APPOINTMENT — Continued: paoe. relationship of donee and appointee determines rate. ....... 7, 114 remaindermen not bound by act of life tenant who fails to exercise power. 109 subdivision 5, section 220 is cbnstitutional 4, 112 when first became a law 35 surrogate of county where donee resided has jurisdiction 115 tax accrues when power is exercised 97 tax upon, is a succession tax 93, 113 vested remainder created by exercise of, when taxable 115 when deemed to have been exercised 101 when exercise of, is a mere form 113 when exercise of, is in contravention of statute of perpetui- ties 116 when tax on, to be paid from donee's residuary estate 110 where remainder is given upon failure to exercise power 106 where remainder is given subject to power 106 will, disposing of all of testator's property operates as an exer- cise of 113 who to determine tax upon the exercise of 115 (See Appraisal; Future and Limited Estates.) POSSESSION: legacy is only a naked right until reduced to 64 PROCEDURE: statute in force when proceedings are instituted governs 16 PROFITS: when taxable 48 PROMISSORY NOTE: payable to husband and wife 53 PROPERTY: defined (I 242, Tax Law) • 389 laws of other States recognized as to distribution of, in in- testacy • ^5'^ not limited to definition under General Tax Law 36 nonresident executor not obliged to testify as to property without this State ^ 149 provision of the Code — estates of married women 402 statute of descent 402 statute of distribution 399 transfer of decedent's property only, is taxable 63 492 QBNEBAL INDEX. PROPERTY — Continued: page. transferred by reason of contract obligations, not taxable.... 65 when right to, accrued under a certain trust deed 84 where community laws prevail 157 (See Appraisal; Nonresident; Power of Appointment; Transfers.) PROPERTY TAX: when imposed by reason of ownership, tax is a 2 Q. QUEENS COUNTY: appraisers in (§ 229, Tax Law) 234 salary of 235 transfer tax clerk in (§ 234, Tax Law) 368 salary of 368 B. RATE OF TAX: contingent estates and remainders, at highest rate possible (§ 230, Tax Law) 244 return of, where property actually passes to one per cent. class 244 under appointment, relationship of appointee to donee deter- mines 114 transfers to collaterals ( § 220, Tax Law) 35 transfers to lineals and others (§ 221, Tax Law) 165 REAL PROPERTY: to be included in aggregate estate transferred to taxable per- sons 15 when first taxable to one per cent, class 34, 165 without this State is not taxable 62 REAPPRAISAL: application to justice of the Supreme Court for (§ 232, Tax Law) 337 appraiser to be appointed by the justice; compensation of; powers of; report of, where filed 337 determination of justice supersedes former determination of the surrogate; where to be filed; certified copy to be sent to Surrogate's Court 338 within what time application for, is to be made; grounds for. 337 Comptroller may apply for, or appeal 360 GENERAL INDEX. 493 REAPPRAISAL — Continued : pj^oe. improper to raise values on , 359 provision applies only to errors of fact 358 rehearing, when refused 358 Supreme Court cannot vacate order for 3G0 will not review surrogate's discretion 361 when not entitled to 353 RECEIPTS: by whom given (§ 222, Tax Law) 186 certificate as to payment of tax on real estate (§ 236, Tax Law) 380 countersigned by whom ( § 236, Tax Law) 379 executor must produce, on final settlement 379 fee for in certain cases 380 recording certificate in county clerk's ofiice 380 REFUND: after time to appeal has expired 211 application for; two-year limitation 211 former statutes respecting 207, 208 interest will attach to, when 213 of tax erroneously paid ( § 225, Tax Law) 207 order need not direct Comptroller to 214 power of surrogate to order 209 provision of the statute is exclusive 209 right to, is a privilege, not a vested right 215 where debts are subsequently discovered 210 within what time application to be made for ( § 225, Tax Law) . 207 RELIGIOUS CORPORATIONS: exemptions of ( § 221, Tax Law) 165 provision is not retroactive since June 1, 1905 165 refers to domestic corporations only 181, 182 when first exempted 165 REMAINDERS OR REVERSIONS: accrual of tax on. 188 subject to appointment, not taxable until power is exercised. . 97 when life tenant can use principal 188 when not taxable 66 (See Future and Limited Estates.) REMISSION OF INTEREST: amendments respecting. . ^ , ■,■•••• 1??> 193 application for , 194 494 OBNBBAL IKDEZ. REMISSION OF INTEREST — Continued: application for — Continued: - page. to whom made .......;.. . . . 194 when denied i.'. . . .'...'^..^ ....... .. 194 cannot be remitted altogether; .".....•. 194 grounds for (§ 223, Tax Law) 192 when allowed ■•,.••• •.•,••••■ • »• ■ • ■.•^ •>. 192 RENSSELAER COUNTY: appraiser in (§ 229, Tax Law) ;.............. 234 salary of . . .'. . . 235 REPORT: of appraiser ( § 230, Tax Law) 241 must be in duplicate 256 what should show 256 where to be filed 245 of appraiser appointed by Supreme Court (§ 232, Tax Law) . . 237 compensation of 237 determination of justice supersedes that of surrogate 338 when to be appointed . . . 337 where determination to be filed 338 of county clerk (§ 239, Tax Law) 384 of county treasurer ( § 240, Tax Law) 385 of surrogate (§. 239, Tax Law) 384 former acts relating to 385 of State Comptroller (§ 240a, Tax Law) 387 former acts relating to 387 payment of tax to State Treasurer by 387 (See Appraisal; Appraiser; Reappraisal; Surrogate.) RESIDENCE OF DECEDENT: appraiser to take proof of 158 will not conclusive as to 161 RETROACTIVE STATUTES: amendatory statute is not, unless intent is clear 18 are not, unless stated to be 17, 18 provision exempting bishop and religious corporations was 18 is not retroactive by section 221, Act of 1905 164 repeal of a statute of limitation, may be 18 RENUNCIATION OF LEGACY: accrual of tax upon 188 right to renounce, is not denied by statute 25 tax is then upon the ultimate devolution of the property 30 (msm&Ah INDEX. 495 RICHMOMD COUKTY: pabk. appraiser in (§ 229, Tax Law) , , i 234 salary of ., 236 RIGHT TO TAKE PROPERTY: by descent or devise, is a privilege 2 S. SAFE-DEPOSIT COMPANY: consent of Ck>mptrolIer to transfer, how obtained 222 corporation transfers at their peril, when 223 obligation to give notice rests on 223 penalty, how incurred 221 property of a decedent, held by 219, 220, 221 when liable to pay tax (| 227, Tax Law) 219 SAVINGS BANE DEPOSITS: in name of mother and daughter 52 in trust for another 49 joint accounts, husband and wife 50 when either or survivor may draw 51 SECTIONS OF THE TRANSFER TAX LAW. See Index to, 509 SECURITIES: appraisal of (§ 230, Tax Law) 263 SHARE IN UNDISTRIBUTED ESTATE: is not taxable 58 « SPECIFICALLY EXEMPTED." (See Exemptions.) STATE: can tax privileges 2 discriminate between relatives 2 STATE COMPTROLLER: appointment of appraisers, stenographers, etc., by (§ 229, Tax Law). . . : 234 appointment of surrogate's assistants in certain counties by (§ 234, Tax Law) 367 application by, for appraisal, stated on information and belief. . 247 books and forms to be furnished (I 238, Tax Law) 383 can appeal from order fixing tax ( S 232, Tax Law) 337, 338 can apply to Supreme Court for reappraisal (§ 232, Tax Law) 337, 338 can institute proceedings to determine tax (§ 230, Tax Law) . . 241 certificate by, showing tax paid on real estate (§ 236, Tax Law) 380 composition agceei^ent by ( § 233, Tax Law) 364 496 GENfiBAL' liTiDBX. STAtE COMPTROLLER — Continued: • PAGE. consent of, to transfer stocks, etc., under section 227 of the Tax Law, liow obtained .'.': ..'... . . .' 222 is to furnish books, blanks, etc., to transfer tax appraisers (§ 238, Tax Law) .■■... 383 may retain counsel ( § 235, Tax Law) 370 must be cited upon application for ancillary letters 228 receipts to be given, or countersigned by (§ 236, Tax Law) .... 379 report to be made by (§ 240a, Tax Law) 387 right to an appraisal, is an interested person 241 tax paid to, direct, in certain counties 186 when first authorized to institute proceedings 241 STATUTES: are not retroactive unless intent is clear 18 literal construction of, when not intended 71 of descent '. 402 of distribution 399 estates of married women 402 one governing procedure 16 provisions of section 222 not repealed by implication 191 STATUTE OF LIMITATIONS: when repeal of, may be retroactive 18 (See Limitations.) STOCK EXCHANGE: seat or membership in, is taxable 45 when owned by a nonresident 138 STOCKS: appraisal of 262 inactive stock. 267 stock of joint-stock association 266 unlisted stocks 265 where there is no market value 266 memoranda of decisions aflfecting 152-156 of domestic corporations are appraised at their market value regardless of where their capital is employed. 264 of domestic corporations owned by nonresident, subject to a life estate 155 of foreign corporation owned by resident 43 when owned by nontesident 155 ■'I of joint-stock associations ; .'. .-.'. . . 154 ' ' of national banks i j .'-. 155 of New York corporations owned by a nonresident 155 QENEBAL INDEX. 497 STOCKS — Continued : paoe. pledged, are not taxable , 60 are taxable if redeemed 46 standing in name of third person, are taxable 154 SUCCESSION: tax is upon the right of 1, 2, 93, 95, 120, 121 SUFFOLK COUNTY: appraiser in (| 229, Tax Law) 234 salary of 235 transfer tax clerk in ( § 234, Tax Law) 369 salary of 369 SUPREME COURT AT SPECIAL TERM WILL NOT REVIEW SURROGATE'S DISCRETION: in appointing an appraiser upon the estate of a nonresident decedent 361 SUPERINTENDENT OF INSURANCE: appraisal of future and contingent estates, annuities, etc., by (§ 231, Tax Law) 327 surrogate is to apply for 327 when necessary .j.. . , 329 SURPLUS FUND: in partition suit, when taxable 40 SURROGATE: acts first as taxing officer 229, 328 appeal lies to, as a judicial ofiicer 328 appointment of assistants, and clerks in certain surrogates' offices by (« 234, Tax Law) 367 can construe will on appeal in transfer tax proceedings 341 can determine all questions relating to the act 229 can issue a commission 230 what moving papers for, must show 230 cannot modify decree where property sold for less than ap- praised value 351 cannot modify order on ex parte application for 387 can send report back for correction 331 can vacate order, when 358 finality of determination of 354 is to apply to Superintendent of Insurance 327 is to forward copies of all orders to State Comptroller. . . 327, 330 is /to fix cash value of all estates 32fi from the report of appraiser, etc. (g 231, Tax Law)..... 326 J 498 GENEBAL INDEX. SURROGATE — Continued: >a6E. is to give notice of his determination 329 presumption of 329 , jurisdiction of the surrogate (§ 228, Tax Law) 227 amendments ailecting 227, 228 ancillary letters unnecessary to confer, in nonresident cases. 232 as to property of nonresidents 124 consent of foreign executor necessary before ancillary let- ters can issue 232 corresponding sections of former acts relating to 234 courts have no general powers of 16 distribution of estate don't affect 233. failure to give notice don't affect appeal. ........... ... . , 343 original and exclusive , . . 229 over stock in domestic corporations ....,,,.. 232 ■ i surrogate where donee of power resided, has, 115, 231 what irregularity does not affect 233 when without; incident .......,, . 231 where nonresident's estate has been distributed 189, 233 where decedent's residence is in dispute, 159 where nonresident leaves property in mona than one . ; county J... X. 233 where resident leaves property in several Counties, , 248 may construe will 230 may order further appraisal ;,>.;.., 262 .' -may return report to appraiser ;...,,,.. 260 ' 'on appeal, may receive additional evidence, and consider new questions ,,..,.,...,... 342 or take proof that transfer was made in contemplation of death of the donor ,....; 343 1 i order; interests of beneficiaries Under ; , . 331 power to modify. , ...351 when not entered by consent ; ;,,.. ,,,330 vacating, newly-discovered evidence .;, ,..*,;...:. . 33 1 ' power jof; to correct clerical errors. ..,...> :■:, iv. . .; 332 to decree previous order erroneous..,, 355 to order a refund j 209 under subdivision 6, section 2481 of the Oodei:;.^. ,. 365 • reports of, when to be made (§239, Tax Law).... ....... 384 '.should vacate order when, report is defective. .;...; 260 GENERAL INDEX. 499 SyRROGATE — Continued: pagjq. taxing debts, etc., erroneously allowed (§ 225, Tax Law). 209, 215 to fix the cash value of all estates; the general subject ; , . 275 from the report of the appraiser and other proof (§ 231, Tax Law). . 326 value of estates and amount of tax, how determined by. . 328 when can modify decree , . . . 354 when caniiot grant relief 356 when to appoint a guardian for an infant or incompetent 327 (See Appeals; Modification of Orders; Reappraisal.) T. TABLE OF CASES CITED 447 TAXABLE BEQUEST: law phrases unnecessary to create , 46 TAXABLE PERSONS: section 221, Tax Law. ..: : 164 who included in the term ; 178 TAX PAID IN ANOTHER STATE: does not relieve property here from taxation. 322 is not to be deducted. . . . : j 322 TAXABLE TRANSFERS. (See Transfers.) TRACT SOCIETIES: exemption of (f 221, Tax Law) ..... 164 when first exempted 166 TRANSFERS: aggregate property, determines taxability of each transfer. . . 169 by exercise of power of appointment ■, . ; *. ...... i . . 90 decisions affecting 112 riot iaxible until power is exercised. ; . ^ j . . 116 when first taxable ...^ 35 by trust deed, when not a gift inter vivot ^ ........; j v . 77 consent of Comptroller to, how obtained ;...,.. 222 defined (§ 242, Tax Law). ..........,.' .^•'••;.-. • 389 by the courts i . . ; 23, 87, 393 there is no transfer by will, unless legacy is accepted.;. . 393 • in contemplation of death .......:■...;..... 73 when first taxable i ....... . 34 -meaning of therword.i. ... .. ^ ...; ;.......,..... .23, 87 !^'Tiot made in contemplation of death i ...;.........'..,■ 74 ■ I I'iiot made to take effect at or after donor's death. ..... . .:; ..'. 82 500 GENERAL INDEX. TRANSFERS — Continued: ,. , ,*'^,?'^ of title, time of ....„......:,:; ..V..' '26 subject to a contingent incumbrance '.' 285 tax is due and payable upon (§ 232, Tax Law) ......... ....'. 185 to take effect at or after donor's death 77, 80 t^hen first taxable , . . , 35 when, person becomes " beneficially entitled," when first taxable 35 when the transfer takes place 24 Nontaxable Tbansfers: accrued rights prior to the Tax Law 57 advancements 66 articles mentioned in section 2713 of the Code 61 bequest for a burial plot 58 bequest with precatory words 59 bonds kept by nonresident at his domicile 125 chose in action, when taxable 66 curtesy 68 estate vested prior to Transfer Tax Law 58 exercise of appointment over funds without this State 108 fund, to pay annuity created by a trust agreement 62 gifts, where will contains no present words of gift 86 gift upon agreement to care for donor for life 87 increase, accruing after decedent's death 58 interest or share in an undivided estate 58 legacy given in consideration of a home (Act of 1887) 59 legacy not reduced to possession 64 legacy paid from property not belonging to decedent 63 legacy to a brother chargeable on land 61 legacy to a corporation named but not in existence 63 legacy tft executor subject to a trust 58 life-insurance policies 149 money of nonresident, transitorily here 150 proce^^ of gratuity fund of New York Produce Exchange. ... 61 property transferred by antenuptial agreement 64 < , prop^y, transferred by contract obligations 65 , real property without the State 62 remainders and reversions under the earlier law 66 stocks pledged as collateral ' . . . 60 .; United States bonds between May 1, 1892, and March 21, ; I 1898 , . . . ; 60, 128 widow's-; dower is not taxable........... 67 CiEilEaAL INDEX. 501 TSANSFEKS — Continued: Taxable Tbansfkbs: page. annuity to executor and trustee 42 bequest for masses .^. ...... . 40 bequest to the United States 43 bond ^nd portgage held by husband and wife jointly. . . ,j 54 both registered and coupon bonds of a nonresident if here at his death 129 by exercise of a power of appointment .,..:., 89 by trust deed 77 certificate of deposit 47, 147 debts due from a legatee ^ .......... . 40 debts owing by a resident to a nonresident decedent 47, 142 deposit to protect a margin 48 firm name, is a part of the good will 41 fund over which grantor reserves a power 49 gifts inter vivos and causa mortis 70 distinction between 70 gifts upon conditions or agreement 80 good will of business 41 " I forgive one-half," etc., amounts to 47 in contemplation of death of donor 69, 73 insurance policies 42 interest in fund in partition suit 40 judgment against heir or legatee 39 land subject to a mortgage, equity only taxable 39 leasehold interests in land; were prior to 1903 48 legacy imposed with a trust 4ft legacy in payment of a debt 44, 320 legacy in lieu of dower is not a debt of the estate 55 legacy payable to a nonresident who dies before receiving it, when taxable 41, 134 legftcy to * widow in lieu of dower 44 money deposited in bank to pay debt due nonresident.. 38, 161 money loaned, is not an advancement 48 money of a nonresident deposited with a trust company. . .... 148 not made in contemplation of death , 74 not to take effect at or after donor's death 82 note of , legatee, ■ '. . .......... 39 notes owned by nonresident decedent within this State...... 149 payment of loan by exercise of power of appointment 119 personal property administered upon without this State...., 39 502 GENERAL INDEX. TRANSFERS — Continued : Taxable Tbansfebs — Continued : page. personal property of resident wherever situated 38 profits; when taxable 48 promissory note, payable to husband and wife ,. 53 property held by partners 43 property on nonresident, when taxable 119-164 residence of beneficiary immaterial 39 saving' bank deposits; in trust for another 49 joint account, husband and wife .^.... 50 ' where either or the survivor may draw 51 where " mother or daughter " may draw ; 52 seat in New York Stock Exchange 45, 138 stock of foreign corporations .' . / 43 stock of New York corporations owned by a nonresident.... 125 stock in a joint-stock association 43 stocks pledged, are taxable when redeemed 46 to take effect at or after donor's death 69, 77 United States bonds prior to 1892 and after 1898 45 where donee survived donor only three days 80 words necessary to make a taxable bequest 46 (See Appraisal; Exemptions; Future and Limited Estates; Non- residents; Power of Appointment; Transfer Tax.) TAXING DEBTS ERRONEOUSLY ALLOWED: section 225 of the Tax Law 209, 215 TRANSFER TAX: amount of, how measured 26, 328 administrator, etc., liable for (§ 224, Tax Law) 198 basis of value 254 collection of, by executors, etc 203 composition agreement respecting (§ 233, Tax Law) 364 failure to tax known property, effect of 254 if directed to be paid as an administration expense, when ta be deducted , . . . , 324 is not a property tax 1 is to be assessed upon the present value, although transferred by appointment 114 is upon method of acquisition j ..,.:. .... 2 is upon succession by' will, or^ devolution in case Of in- testacy 1, 2 GENERAL INDEX. 503 TRANSFER TAX — Continued : page. law does not apply to remainders and reversions created prior to its passage :'. 298 law in force at time of transfer controls 55 lien on the property until paid (§ 224, Tax Law) 198, 200 nature of 16 on legacy to executor (§ 226, Tax Law) 216 on real estate, not to be assessed against executor 205 on remainders in trust estates, is presently payable 297 paid out of property, does not make it a tax on property .... 2 paid on transfer in another State, not to be deducted 322 payment of, to county treasurers, in certain counties 186 payment to State Comptroller, in what counties 186 rate of, under power of appointment 114 refund of, erroneously paid (§ 225, Tax Law) 207 sale of what property to pay 205 the test of value by which tax is measured 267 when due and payable (i 221, Tax Law) 185 when legacy is renounced 30, 217 when property is subject to power of appointment 97 when tax attaches to legacy 25 when tax will be paid from donee's residuary estate 110 (See Appraisal; Nonresidents — Nontaxable Transfers;' Taxable Transfers; Transfers.) TRUST COMPANIES: consent of Comptroller to transfer, how obtained 222 corporations transfer at their peril, when 223 liability of, to pay tax { § 227, Tax Law) 219 obligation to give notice rests on 223 penalty, how incurred 221 transfer of decedent's property by 219, 220, 221 TRUST DEEDS: not constituting an absolute gift 77 not made to take effect at donor's death 82 when interest accrues under 82, 84 TRUSTEES: bequest to, in favor of exempt corporation 59 devise to, to found a home : , 63 (See Administratfti; Executor.) V. ULSTER COUNTY: transfer tax clerk in (§ 234, Tax Law) 369 salary of 369 5()4 ©ISNJBRAL INDEX. UJfCONSTlTUTIONAL PROVISION: *iaEi , part of chapter 76, Laws of 1899, relating: to taxatioi^, oi^es^- tates; which vested piipr/to June 3Q, 1885 ; i . 1 1; 11 UllIDISTRIBUTED ESTATE: share in, not presently taxable ....;.... 38 UNITED STATES: bequest to, is taxable i. .......;.:;>' 43 bonds of, not taxable between May 1, 1892, and March 21, 1898 .....l„. .....,..:;. 60 bonds of, were taxable prior to the Act of 1892, and are taxable siitcelQ98, March 21st; ..........;..;. 45 V. VESTED ESTATES: " aeerued," when equivalent to vested. i . . . 84, 86 although will contains no words of present gift..... ..-..■ 86 payment. of tax on, from property transferred in trust...... 288 i -vested prior to Tax Law, not taxable. A /; '^ 58 . -when taxable prior to 1897 .v. 300 VESTED AND CONTINGENT ESTATES AND REMAINDERS: when contingent 278 when vested 278 when vested in interest 278 when vested in possession 278 VOIDABLE TRUST: discretionary power to use principal creates 294 VOLUNTARY PAYMENT OF TAX: what is 189 when not deemed voluntary 190 W. WESTCHESTER COUNTY: appraiser in (§ 229, Tax Law) ,. 234 salary of 235 transfer tax assistant in ( § 234, Tax Law) 368 salary of 3^ WIDOW: articles enumerjited in section 2713 of the Code, not entitled to money allowance for 319 GESTEBAL ITSVEi, 505 WIDOW — Continued : Moe. dower> of, taet-taxable 67 dower right is the property of the wiodw, not of tes- tator i , *J fl8 legacy in lieu of, is taxable if accepted. 44 not a debt of the estate 55 !> entitled to money equivalent in lieu of necessary provisirt;'r,StSi' fe r t oJ - - -^fcuvni r ; surrogate can construe on appeal in transfer tax prOceedingsi , 341 WILL OF NONRESIDENT: not conclusive as to decedent's residence 161 WITNESS: y.;^-;; • ^A competency of, on appraisal 253 . fees of (S 230, Tax I.aw) 241 legatee as 253 surrogate can issue commission to examine nonresident 230 when nonresident executor not obliged to testify.....,, 263 INDEX TO FORMS. PAQE. Affidavit for appraisal of the property of nonresident decedents 431 Affidavit to be filed upon application for letters testamentary or letters of administration 440 Affidavit required by the State Comptroller upon application for the removal or transfer of the property of a nonresident decedent where transfer tax proceedings have not been insti- tuted 434 Agreement — Upon composition of transfer tax 436 Application to justice of Supreme Court for reappraisal 439 Application to Superintendent of Insurance 414 Certificate of Comptroller showing payment of tax upon real estate belonging to decedent 438 Citation to show cause 429 Decree directing payment 430 District attorney proceedings — Petition 428 Memorandum suggested by the appraisers of New York county in preparing affidavits to be used upon appraisals 409 Notice of appeal to surrogate 420 Notice of appeal to the Appellate Division 422 Notice of assessment of tax 420 Notice of hearing before appraiser 413 Notice of motion on application to remit interest 423 Notice by bank or trust company of the transfer of deposits 441 Notice of intended transfer of stock of New York corporations. . . . 442 Notice by bank or trust company of the transfer of deposits in the joint names of a decedent and one or more persons, etc 443 Notice of intended delivery of contents of safe-deposit box to executors, etc 442 Oath of appraiser 412 Order assessing tax where no appraisal has been directed 426 Order designating appraiser 411 Order designating appraiser — Nonresident decedent 434 Order determining the taxable transfers and assessing the tax 419 Order exempting estate 427 Order granting citation i. . 429 [507] 508 INDEX TO FORMS. PAGE. Order remitting interest from ten to six per ccnt.....,.......-f- ^^^ Ord6r i«tttriiing repdri to appfaiiser. ...........;/.....'......... . 4l8 Order of surrogate on appeal. ; , 421 Petition — District attorney, proceedings 428 Petition for appraisal — Resident decedent 410 Petition for appraisal — Nonresident decedent , 433 Petition tor appraisal and'detemiination by surrogate 425 Petition to remit interest 422 Petition showing estate to be exempt 427 Report of appraiser 415 Subpcena .^. 413 INDEX TO THE ^E(:tlON$ OF THE TRANSFER TAX LAW. PAOE. Section 220. Taxable transifets . . :..............; 34 221. Exceptions and limitationa. 164 222. Accrual and payment of tax ! '.'. 185 223. Discount and interest. .../..!...". .'1 192 224. Lieu of tax and collection hy executors, ' adminis- trators, and trustees 198 225. Refund of tax erroneously paid 207 226. Taxes upon devises and bequests in lieu of commis- sions 216 227. Liability of certain corporations to tax 219 228. Jurisdiction of the surrogate 227 229. Appointment of appraisers, stenographers, et cetera. 234 230. Proceedings by appraiser 241 231. Determination of surrogate 326 232. Appeal and other proceedings 337 233. Composition of transfer tax upon certain estates . . . 364 234. Surrogate's assistants in New York, Kings, and other counties 367 235. Proceedings by district attorneys 370 236. Receipt from coiinty treasurer or comptroller 379 237. Fees of county treasurer 382 238. Books and forms to be furnished by the State Comp- troller 383 239. Reports of surrogate and county clerk 384 240. Reports of county treasurer 385 240a. Report of State Comptroller ; payment of taxes 387 241. Application of taxes 388 242. Definitions 389 243. Exemptions in article one not applicable 394 282. Limitation of time 202 [Whole Numbeb of Pages 539.] '•■■I