The court in the latter case, at page 497 of 82 Hun, at page 521 of 31 N. Y. Supp., says:

"In case a corporation is authorized by statute to take property by devise or bequest, 'subject to all the provisions of law relating to devises and bequests by last will and testament,' or 'subject to the provisions of law relating to bequests and devises to religious societies,' the limitation imposed by section 6 of chapter 319, Laws of 1848, applies, and a devise or bequest to the corporation is invalid unless the will is executed two months before the death of the testator."

The New York Institution for the Blind was incorporated by chapter 214 of the Laws of 1831, and the several acts amendatory thereof, for the benevolent purpose, as its charter declares, of instructing children who have been born blind, or who have become blind by disease or accident. By the act of incorporation it was authorized to purchase, hold, and convey any real or personal property for the purpose of its incorporation, provided the annual income should not at any time exceed $10,000. It was further provided that the Legislature might at any time alter, modify, amend, or repeal the act of incorporation. The charter was amended by chapter 226 of the Laws of 1874, whereby the institution was

"authorized to take, hold, transfer, and convey, for the purpose of its corporation, in addition to the property now held by it, all such other property, real and personal, as has heretofore been given, devised, bequeathed, subject to all provisions of law relating to devises and bequests, or conveyed to it, or may at any time hereafter be given, devised, bequeathed, or conveyed to it by any person or persons whomsoever, for the sole use of said institution."

The Cathedral of St. John the Divine, a religious and educational institution, was incorporated by chapter 222 of the Laws of 1873, for the purpose, as its charter declares, of the establishment, erection, maintenance, and management of a cathedral church and its appurtenances in the city of New York, in accordance with the doctrine, discipline, and worship of the Protestant Episcopal Church in the United States, together with such incidental cathedral foundations, schools, faculties, and other religious or charitable works as may be properly connected therewith in and for the said diocese. The charter provides, among other things, that it shall be capable of “acquiring, taking and holding, in trust or otherwise, by purchase, gift, grant, devise or bequest (subject, however, to all the provisions of law relating to devises or bequests by last will and testament), all and any estate or property, real or personal, necessary or proper for all or any of the objects or purposes of the said corporation, and to sell, convey, or otherwise dispose of the same," provided the net yearly income of the property thus acquired shall not exceed a certain sum.

For the reasons and upon the same authorities, which apply to the bequest to the New York Protestant Episcopal City Mission Society, the bequests to the New York Institution for the Blind, and the Cathedral of St. John the Divine, must in my opinion be held to be invalid.

The New York Bible and Common Prayer Book Society was incorporated by chapter 118 of the Laws of 1841. Its charter was amended by chapter 57 of the Laws of 1864. By section 2 of the

amendatory act, the corporation was declared to be subject to the provisions of chapter 360 of the Laws of 1860, entitled "An act relating to wills." I feel constrained to hold that the bequest to this society is invalid.

In Stephenson v. Short, supra, the validity of a legacy bequeathed to the Baptist Missionary Society of the state of New York, in a will executed two days before the testator's death, was under consideration. The society was not organized under the act of 1848, but was created by special charter. The court (92 N. Y., at page 446) says: "We concur with the General Term in holding that a missionary society is a religious society, and are of opinion that the clause subjecting the appellant to the provisions of law relating to devises and bequests to religious societies, is sufficient to extend to it all provisions on the subject relating to any kind of religious society, and that consequently section 6 of the act of 1848, must, on the authority of Kerr v. Dougherty, 79 N. Y. 327, and Lefevre v. Lefevre, 59 N. Y. 434, be held to apply to the bequest to this last-named appellant."

[3] The New York Association for the Blind was incorporated April 20, 1906, pursuant to and in conformity with chapter 559 of the Laws of 1895, being an act entitled "An act relating to membership corporations." An examination of this statute and of the certificate of incorporation has failed to disclose any provision that would subject this corporation to the provisions of the act of 1848. I am therefore of the opinion that the bequest to it is valid and should be upheld. This brings us to a consideration of the question as to whether or not the transfer taxes to be hereafter imposed upon the estates in remainder in two trust funds, set apart and created by the will, shall constitute a charge upon the residuary estate; or be payable out of the principal of the respective trust funds. The will creates two trust funds, namely, one of $20,000 for the benefit of the testator's son during his lifetime, with power of disposition by will, and one of $100,000 for the benefit of his daughter during her lifetime, one-half of which, upon the daughter's death, is bequeathed to her husband, if he survive her, the remaining one-half to become a part of the residuary estate, but if the daughter survive her husband, a similar power of disposition of the whole trust fund is given to her. The present value of the life estate of the son in the trust fund of $20,000 was appraised at the sum of $7,459, and the present value of the life estate of the daughter in the trust fund of $100,000 was appraised at the sum of $43,272. The taxes imposed upon these life estates have been paid out of the principal of the testator's estate, and no fault is found with such payment, because, by the first clause of the will, payment thereof is expressly charged upon the residuary estate. It is obvious that the imposition of the taxes upon these remainders must be deferred until the death of the respective life beneficiaries; and, in my opinion, the residuary estate constitutes the fund out of which the taxes, when imposed, must be paid. I was asked to determine this question upon the settlement of the order entered upon the appeal from the order assessing the transfer taxes, presently payable, upon this estate; but for want of authority the question was not then decided. I did, however, express the opinion which I then entertained.

and which I still entertain, and I need only repeat, in substance, what I then said. 80 Misc. Rep. 140, 141 N. Y. Supp. 798.

[4] The testator had an unquestionable right to direct how, or from what fund, all or any of the transfer taxes to which his estate, or any portion thereof, might be subjected should be paid. Matter of Gihon, 169 N. Y. 443, 62 N. E. 561; Isham v. New York Ass'n for Poor, 177 N. Y. 218, 69 N. E. 367; Matter of Bass, 57 Misc. Rep. 531-533, 109 N. Y. Supp. 1084.

[5] The direction of the testator, as expressed in the first clause or paragraph of his will, is:

"That all the gifts, bequests, devises, and legacies, hereinafter mentioned, be paid, transferred or received in full (subject to any provisions for abatement hereinafter contained), and that all succession or transfer taxes imposed thereon, or on any of them, be paid out of my residuary estate."

The question involves a construction or interpretation of this clause of the will. Did the testator intend and so express himself, that the appointees and ultimate beneficiaries, in the event of the exercise of the power of appointment, should receive the gifts or bequests in full and without diminution by reason of any succession or transfer tax that might be imposed thereon? In my opinion that was his intention, and I think the language employed must be construed as expressing that intention. If the power of appointment is exercised by the donees, or by either of them, their appointees will take through a source of title emanating from the will itself. In other words, title to the gifts or bequests will be transferred from the testator to the appointees and ultimate beneficiaries through the exercise by the donees of the power of appointment. The executor should be allowed to retain out of the residue of the estate until and awaiting the imposition of the taxes upon these remainders an amount sufficient to discharge the same.

[6] There is but one other question presented for my consideration, and that relates to the payment of the transfer taxes to be hereafter imposed upon the several distributive shares into which the residuum. of the estate is divided, and which are disposed of by the residuary clause. The testator directs that the residuum of his estate, including all lapsed legacies, be divided into five equal parts, one of which is given to his daughter-in-law, Dinah W. Smith, absolutely; one to his grandson, Robert William Hobart Smith, absolutely; one to his son, Robert Hobart Smith, absolutely; and the remaining two-fifths are given to his daughter, Clara Hunter Stewardson, during the term of her natural life, and upon her death, if she predecease her husband, Rev. Langdon C. Stewardson, they are to be distributed, one-third to Dinah W. Smith, one-third to Robert William Hobart Smith, and onethird to Robert Hobart Smith, or their respective descendants, in the event that either of them shall have previously died leaving descendants, such descendants to take, as in case of intestacy, under the intestate laws of this state; but the residuary clause further provides that if the said Clara Hunter Stewardson shall survive her said husband, then upon her death, the two-fifths given to her for life shall go to such person or persons, and in such shares or proportions, as she may direct by will or by an instrument in the nature of a will.

[7] Counsel for the grandson and the daughter-in-law, to each of whom one-fifth of the residuary estate is given absolutely, claims that the tax to be hereafter assessed upon each distributive share should constitute a charge upon and be paid out of the whole residuary estate before division; whereas, counsel for the daughter, for whose benefit during life two-fifths of the residue are set aside and for her husband, insists that each share of the residue should pay its own tax. My opinion is in accord with the latter contention.

It is quite obvious, as it seems to me, that the direction with reference to the payment of succession or transfer taxes, contained in the first clause of the will, has no application to the distributive shares. into which the residue is to be divided. The direction "that all the gifts, bequests, devises and legacies hereinafter mentioned, be paid, transferred or received in full * * * and that all succession or transfer taxes imposed thereon, or on any of them, be paid out of my residuary estate," must, in my opinion, be held to embrace those bequests and devises, and those only, which precede the division and disposition of the residue. The words "imposed thereon, or on any of them," manifestly refer to the bequests and devises which precede the clause or paragraph in which the residue of the estate is disposed of. The persons, among whom the residuary estate is to be divided stand in different degrees of relationship to the testator, and the same rate of assessment will not apply to each share, and therefore the taxes when imposed, will differ in amount.

The decree, to be entered in accordance herewith, may be settled upon three days' notice.

Decreed accordingly.

In re CLARKSON'S ESTATE.

(Surrogate's Court, New York County. April 2, 1912.)

1. TAXATION (§ 895*)—TRANSFER TAX-APPLICATION TO ASSESS-GROUND FOR DENIAL.

Where the report of the appraiser does not contain a finding that taxation on remainders should be suspended until death of the life tenants, and the order entered on this report does not suspend taxation thereon, an application by the state comptroller for an order assessing same as of the date of the life tenant, which order would in effect determine that the original order fixing the tax was erroneous, will be denied while the original order remains unmodified.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1714-1721; Dec. Dig. § 895.*]

2. TAXATION (§ 895*)-TRANSFER TAX-INTERESTS TAXABLE.

Where the appraiser, though finding that the portion of a bequest to a charitable institution incorporated under Laws 1848, c. 319, § 6, as amended by Laws 1903, c. 623, was invalid because it exceeded one-half of the estate, thereby in effect finding that such part passed under the Intestate Laws and was taxable at the date of decedent's death, failed to include it in his report and it was excluded from the order assessing a tax on the estate, this constituted a determination that it was not taxable, and For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

estopped the state comptroller, who failed to appeal therefrom, from subsequently securing an order assessing a tax thereon.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1714-1721, Dec. Dig. § 895.*]

Application by the state comptroller for an order assessing a tax as of the date of the death of life tenant on an interest passing under the will of William R. Clarkson, deceased. Application denied.

Sackett, Chapman & Stevens, of New York City, for executors.
Joseph F. McCloy, of New York City, for State Comptroller.

FOWLER, S. Decedent died in 1895. He directed his trustee to pay the income of one-half of his residuary estate to his wife during her life and the income of the other one-half to his sister during her life. He further directed that after the death of each of the life tenants the one-half of the residuary estate held in trust for her benefit should be paid to the Jennie Clarkson Baptist Orphan Home. This corporation was one of those charitable organizations which, under section 6 of chapter 319 of the Laws of 1848, as amended by Laws 1903, c. 623, could not take more than one-half of the personal property of a testator if such testator was survived by a wife, child, or parent. The transfer tax appraiser found that the value of the remainders after the life estates of decedent's wife and sister exceeded one-half of the estate by about $40,067, and he reported that the decedent died intestate as to this amount. The order assessing a tax upon the estate of decedent did not assess a tax upon this amount, nor did the appraiser report that it was taxable. The state comptroller now applies for an order assessing a tax upon this sum as of the date of death of the life tenant.

[1] As the report of the appraiser did not contain a finding that taxation on this amount should be suspended until the death of the life tenants, and as the order entered upon the report did not suspend taxation upon it, the court will not, while the original order is still unmodified, grant an application which would in effect determine that the original order fixing tax was erroneous. Matter of Schermerhorn, 38 App. Div. 350, 57 N. Y. Supp. 26; Matter of Lowry, 89 App. Div. 226, 85 N. Y. Supp. 924.

[2] Besides, if the appraiser was correct in finding that that part of the bequest to the Jennie Clarkson Baptist Orphan Home which exceeded one-half of decedent's estate passed by the Intestate Laws, then that sum was taxable at the date of decedent's death, and not at the date of death of either of the life tenants. The appraiser's failure to include it in his report, as well as its exclusion from the order assessing a tax upon decedent's estate, constituted a determination that it was not taxable; and if that determination was erroneous, the remedy of the state comptroller was by appeal. Matter of Crerar, 56 App. Div. 479, 67 N. Y. Supp. 795; Matter of Morgan, 36 Misc. Rep. 753, 74 N. Y. Supp. 478; Matter of Von Post, 35 Misc. Rep. 367, 71 N. Y. Supp. 1039. Application denied.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 149 N.Y.S.-3