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and 140 New York State Reporter and selling committee of that corporation, and also are menibers of the Fourth Avenue Syndicate. In view of the fact that such company is named as executor in the will, in consequence of which these officials will necessarily be compelled, in adjusting the interests of the deceased with the Realty Associates and with the surviving members of the Fourth Avenue Syndicate, to be dealing in a measure with themselves, the Title Guarantee & Trust Company has, after negotiation with these two concerns as to the interest of the decedent's estate, and before closing on the basis determined during these negotiations, come into court and asked approval of its proposed terms of settlement. On account of the peculiar character of the transaction, a special guardian has been appointed; and, in addition, testimony has been taken at length upon the subject-matter of the contracts of the deceased and the rights of his estate therein, and also as to the details of the proposed settlement.

Under the terms of the settlement with the Realty Associates it is suggested that, as that corporation had at the time of decedent's death about 700 pieces of real property of various valuations, to endeavor to fix the interest of his estate therein would be a most cumbersome, expensive, and uncertain proceeding; and it is therefore proposed that, in place of such a method of computation, there be adopted that offered by an amendment to the standing orders, made since the death of the deceased, viz., that, if a member of the buying and selling committee die prior to April 30th in any year, his estate shall receive one-half of what he would have been entitled to in the annual distribution of profits for the three succeeding distributions. It is unnecessary to review at length the testimony or the reasons given in the report of the special guardian; but a careful examination of the entire subject satisfies me that the proposed settlement is an equitable and proper one, and more advantageous to the estate than if the parties had proceeded as provided by the terms of the original standing orders. The suggestion of the special guardian, that the amount of the settlement should be fixed and put into cash at the present time, would be practically requiring the parties to go through the original procedure or to endeavor to anticipate what the profits of each member of the corporation would be for the three succeeding years. The settlement proposed is made to avoid the uncertainty, the difficulty, and the expense of this proceeding, and is more beneficial to the estate.

As to the interest of the deceased in the Fourth Avenue Syndicate, it may be said that it is apparent that this was a speculative scheme pure and simple. The executor is no more justified in continuing to put money of the estate into a scheme which involves a speculation in the future value of real estate than he would be to put money into a syndicate which speculates in the future value of stocks; and, in view of the many legal complications which would naturally arise in the endeavor to determine the interest of the estate, the offer by which the estate could close out its interest in such speculation is not only better for the estate, but is strictly in accord with the duty of the executors.

In conclusion, it is to be noted that the individual executrix, who is in no way interested in these speculations, has approved of the proposed compromise, and that the widow of the deceased does not op

pose it. Notwithstanding that, it appears that she has been urged by the officials of the Title Guarantee & Trust Company to retain counsel and inspect the matter fully so that she might understand the situation; and, if there was anything in the proposed settlement which was improper, either in fact or in law, to make objection thereto.

The prayer of the petitioner is therefore granted, and the terms of the proposed settlement approved.

Application granted.

(55 Misc. Rep. 496.)

In re CARROLL'S ESTATE. (Surrogate's Court, Rensselaer County. July 18, 1907.) 1. PAUPERS-SUPPORT_RECOVERY FROM ESTATE.

An application by a city to be reimbursed from the estate of a decedent for its care of her in the poorhouse for 16 years on a temporary commitment, on the ground that the city was deceived as to her need of charity, cannot be upheld without evidence of fraudulent conduct.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Paupers, $8 209–

211.) 2. SAYE-FRAUD.

In the absence of proof to the contrary, it will be presumed that a person received into a public charitable institution truthfully answered questions asked of her touching her property.

In the matter of judicial settlement of the estate of Mary L. Carroll. Claim disallowed.

George B. Wellington, Corp. Counsel, for claimant.
Clarence E. Akin, for administrator.

HEATON, S. Claim of the city of Troy against the estate of Mary L. Carroll (sometimes known as Loughman) to be reimbursed for her keeping as an inmate of the county poorhouse during about 16 years prior to her death. When admitted to the county house in 1899, the deceased had in the Troy Savings Bank $578.26 and a note of face value of about $1,000, but of no value now. The estate of the deceased now amounts to about $800. Her husband survives, who has not lived with her for many years and who is irresponsible. She leaves no next of kin.

The city bases its claim upon the presumption that its officers made inquiries as to her need of charity, decided that she was so in need, but were deceived, or united with the deceased in perpetrating a fraud upon the city. The latter presumption cannot be entertained, as there is no evidence that any city officer acted fraudulently, and no such action will be presumed. Neither is there evidence that any city officer was deceived, since it does not appear that any inquiry was made as to the financial condition of the deceased or any information upon the subject given by any one. Neither does it appear that the deceased gave the officer any information, or gave false information concerning herself or her financial resources. If we assume that the entries in the book were made from statements of the deceased (of which there is no evidence), it does not appear that she was asked con

and 140 New York State Reporter cerring her money or property, or what answer she made if she was so asked. Assuming that, if asked, she told the truth, as we must, the presumption is that she told the officer about her bank deposit and note and the reason why she used her maiden name. Since the cause of the dependency was a sore foot, which no doubt was looked upon as a temporary disability, it would not be strange if the officer judged that it was better public policy to give her needed temporary assistance, leaving her the money with which to support herself after her recovery, or to defray her funeral expenses upon her death. It does not even appear that she made application for relief; but, on the contrary, one might reasonably say that she was found by the charity officer and sent to the county house as a real act of charity, rather than that she, with her sore foot, which was the sole cause of her not being able to take care of herself, sought out and went to the superintendent of the poor with the covert intention of defrauding the city. If, then, there is no evidence that the deceased obtained help from the charity department of the city by any fraudulent act which has been proved to have been committed by her and which induced the city to grant her charity, then, under the decision in the case of City of Albany v. McNamara, 117 N. Y. 173, 22 N. E. 931, 6 L. R. A. 212, the claimant has not established a claim against the estate and cannot recover.

Under what arrangement the deceased remained in the county house for 16 years, when her commitment was only temporary, has not been shown, nor the time when she was cured of the cause of dependence and should have been discharged. The statute of limitations which has been raised might in any event cut off all claim under the original commitment.

Claim disallowed.

(55 Misc. Rep. 472.)

In re EATON'S ESTATE.

(Surrogate's Court, Madison County. July, 1907.) 1. TAXATION_TRANSFER TAX-REAPPRAISAL.

The surrogate, on an order to show cause, has power to set aside an order assessing a transfer tax and directing a reappraisal, where it is claimed that certain interests were taxed at a lower rate than provided by Transfer Act, Laws 1896, p. 795, c. 908, as amended by Laws 1901, p.

380, c. 173. 2. SAME-PROPERTY SUBJECT.

Testatrix provided in her will that, as her brother was unable to care for himself, she desired one of her sisters and her sister's husband to care for him for life, for which they were to receive $75 per month. Held, that such amount was taxable under the transfer act at the rate of 5 per cent., as, in the event of the death of her sister, the husband would be

entitled to the whole compensation. 3. SAME.

Testatrix directed the distribution of the residue of her estate to her brothers and sisters, with the provision that, if one sister named should die before the final distribution of the estate, ber share should go to her daughter. Held, that such share was assessable at the rate of 5 per cent. under Transfer Act, Laws 1896, p. 874, c. 908, $ 280, as amended by Laws 1901, p. 385, c. 173.

In the matter of the estate of Elizabeth Storms Eaton. Order to show cause why the appraisal of an estate should not be set aside and an appeal from an order assessing a transfer tax. Decree rendered.

Albert E. Campbell, for Comptroller.
Carlos J. Coleman, for executor.

KILEY, S. An order was made by the surrogate of Madison county on or about January 26, 1907, assessing the transfer tax on the above estate in accordance with the report of the county treasurer. Exception is taken by the Comptroller as to the manner of assessing said tax, who claims that, through error, certain interests were improperly taxed and the rate at which said interests were taxed is lower than the rate provided by statute. The Comptroller procured an order to show cause why the appraisal should not be set aside and a reappraisal of the estate had, under authority found in subdivision 6 of section 2481 of the Code of Civil Procedure. In order to fully protect the rights of the state, the Comptroller also appealed from the order of the surrogate assessing the tax. The appeal and the order to show cause were both argued at the same time, and, by consent, are to be disposed of by whatever decision is here made.

That the surrogate has authority to set aside his order assessing the tax, on account of the error complained of, seems to be recognized by the courts. Matter of Earle, 74 App. Div. 458, 77 N. Y. Supp. 503. The order to show cause is broad enough to confer jurisdiction upon the surrogate to direct a reappraisal; and, under the objection of the respondent, it is at least doubtful whether a reappraisal could be ordered under the terms of the notice of appeal filed herein. Matter of Wormser, 51 App. Div. 441, 64 N. Y. Supp. 897; Matter of Davis, 149 N. Y. 540, 44 N. E. 185; Matter of Manning, 169 N. Y. 449, 62 N. E. 565.. If the relief sought by appellant is granted, it necessitates setting aside the assessment made against the executor, as trustee, at 1 per cent., and an assessment made against different persons at 5 per cent. The appeal is dismissed, with costs to the respondent against the state of New York. As to costs, see sections 3240 and 3241 of the Code of Civil Procedure.

I entertain the motion upon the order to show cause. Mrs. Eaton left a will and a codicil to that will. The testatrix had a mute brother, George Albert Storms, who survived her. By the sixth and seventh clauses of her will she made provision for the support and maintenance of her said brother as follows:

Sixth clause: "I give and bequeath to my sister Susan C. Storms, during the term of her natural life, from the income of my estate, one hundred dollars per month, provided and on condition that she cares for and makes a home for my mute brother George Albert Storms during his lifetime.”

Seventh clause: "Should my sister Susan C. Storms die before my brother George Albert Storms, then and in that case I hereby direct and empower my said executor to pay to my sister Leah Catherine Kersey, from the income of my estate the sum of fifty dollars per month for caring for and making a home for my said brother George Albert Storms during his lifetime, and in case said George

and 140 New York State Reporter Albert Storms should survive both Susan C. Storms and Leah Catherine Kersey, then my said executor is hereby authorized and directed to make other suitable and sufficient arrangements for such care and home and to pay for the same."

In the codicil of her said will, probated with the will, she provided for the support of her said brother, George Albert Storms, as follows:

"Whereas my brother George A. Storms is unable to care for himself through physical defects and infirmities, it is my wish that my sister Genevieve S. Jacobs and her husband Nathaniel P. Jacobs, do so care for him and make his home with them during the term of his natural life and that they shall re ceive the sum of seventy-five dollars ($75.00) per month compensation during that time. In event of his death before that of Genevieve S. Jacobs or Susan 0. Higgins, I direct that they share alike with the other heirs, in the general and final distribution of my estate."

I think it must be held that the testatrix, by the codicil to her will, revoked the designation of the persons whom she desired to care for her brother as set forth in paragraphs 6 and 7 of the will, other than her executor, and by the codicil made a new designation, with different compensation attached. These designations are specific. . The provision that the executor care for the brother is general and effectual only when the others fail of their purpose. A reading of the will and codicil show that one of her main purposes was the care of her brother, George A. Storms. By the order sought to be set aside, this provision for the brother was assessed against the executor at 1 per cent. The Comptroller urges that this should have been assessed against Genevieve and Nathaniel P. Jacobs, who, under the provisions of the codicil, receive $75 a month, and that it should be assessed at 5 per cent. The respondent resists the application of such a rule upon five several grounds: First. That it is payable out of the income, and not the corpus of the estate. Second. That one-half of it goes to a sister, and therefore all of it cannot be taxed at 5 per cent. Third. That the provision is for compensation to the parties designated for services to be rendered and support and maintenance to be furnished to George Albert Storms in the future. Fourth. That at any time the Jacobs could defeat it by refusing to accept under that provision. Fifth. That it is properly assessed against the executor.

As to the first ground of objection: The codicil does not make the payment dependent upon the income; and a court would not be warranted in holding that the support and maintenance of this unfortunate brother is dependent on such a contingency, which might defeat one of the prime objects of testatrix's intention.

As to the second ground of objection: If the sister Genevieve should die, then and in that event the husband would be entitled to the whole compensation. Under the possibility of the happening of such a contingency, section 230 of the law of taxable transfers (Laws 1896, p. 874, c. 908, as amended by Laws 1901, p. 385, c. 173) provides as follows:

"When property is transferred in trust or otherwise, and the rights, Interest or estates of the transferees are dependent upon contingencies, or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or conditions, would be pos

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