Misc.] Supreme Court, March, 1899. of record and become part of the records of the state department of excise, and such limit or boundary line shall not be changed for a period of five years after the date of recording the same, except such hamlet or unincorporated village become an incorporated village with corporate limits and boundary lines different from those established by the state commissioner of excise, in which case such newly incorporated village may be enumerated as hereinbefore provided in this section." Pursuant to this provision the state commissioner of excise caused an enumeration of the inhabitants of the unincorporated village of Spring Valley in Rockland county to be duly taken in the month of February, 1898, having first established a limit or boundary line around said village. The proceedings of the commissioner were correct and legal in every respect and proper maps were filed and a suitable public record made. The premises of the respondent Hans P. Bradsted are within the boundary so established. The enumeration disclosed the fact that the unincorporated village so limited and bounded contained over 1,800 inhabitants and being in excess of 1,200, the amount of excise tax within said village was determined to be the sum of $200, under the provisions of the Liquor Tax Law. In the latter part of the month of April, 1898, Bradsted obtained a liquor tax certificate from the county treasurer for the sum of $100, on the representation made by him at the time, that his place was not within the limit or boundary so established by the commissioner, but that it was in a separate village or hamlet from that of Spring Valley, and known as Heyengaville. The license conferred by this certificate will expire April 30, 1899, and these proceedings are taken to enjoin Bradsted from trafficking under it. The evidence does not disclose the existence of any separate community known as Heyengaville. The locality is on the southeast corner of Spring Valley, was first known as Dutch Factory, afterwards locally as Heyengaville, from the name of the purchaser (Heyenga) of the factory, but is not in any sense a separate and distinct hamlet. There is no apparent break or vacancy between the conceded part of the unincorporated village of Spring Valley and the place in question, and all is built up in the general village style. There is no post-office and no stores located among the cluster of houses which Bradsted calls Hevengaville. There is a factory, the premises of a charcoal burner, and a dozen or more tenement-houses, but on the surface Supreme Court, March, 1899. [Vol. 26. the entire inclosure within the limit or boundary created by the commissioner is apparently one community. Bradsted has a box in the Spring Valley post-office and his name appears in the Spring Valley directory as that of the keeper of a saloon on Central avenue. In view of the object to be accomplished, namely, that of establishing a proper fee or tax to be paid by the applicant for a certificate entitling the holder to traffic in liquor, it is evident that the commissioner has only included one unincorporated hamlet or village in the limit established, within the meaning of the law. lf, however, Heyengaville is to be regarded as a separate community or unincorporated village, I am still of the opinion that the commissioner may include several hamlets within a single limit or boundary, so long as they are so close together as to constitute, for all purposes of trade and association, a single community. Nor should the court interfere, unless in a case where the action of the commissioner indicated a palpable abuse of the discretion vested in him by law to the prejudice, in some way, either of the applicants for permission to traffic in liquor, or of the communities. affected. Central avenue, which divides the village of Spring Valley as actually built up and as established by the commissioner, is on the dividing line between the towns of Ramapo and Clarkestown. As a consequence one-half of the village is included in the town of Ramapo and the other half in the town of Clarkestown. At the time of the enumeration trafficking in liquor was permitted in the town of Clarkestown, but forbidden in the town of Ramapo by vote of the electors of these towns respectively, and the legality of the commissioner's action is assailed in these proceedings for that reason. I do not think the circumstance affects the validity of the commissioner's act. There is nothing in the law to prevent an enumeration being taken of the inhabitants of an unincorporated village situated partly within a township where trafficking in liquor is permitted and partly in a township where it is prohibited. The object is simply to ascertain the number of inhabitants in a settled community for the purpose of determining the proper and equitable tax to be paid by any one who may, under the provisions of the law, be permitted to carry on the sale in said community. The premises of Bradsted are located in the town of Clarkestown and the sale of liquor was permitted in that town at the time he applied for and procured the certificate. The fact that liquor could not be sold in that part of the village in Misc.] Surrogate's Court, Erie County, March, 1899. cluded within the township limit of Ramapo was not in any sense an injury to him. On the contrary, the tendency of that fact was to limit competition without lessening custom. The designation of the limits of an unincorporated village is to continue for five years, while the voters are at liberty to change the policy of the town every two years. It is quite apparent that the legislature must have had in view the possibility that a different policy might prevail with respect to the sale of liquor in different portions of an unincorporated village, under the provisions of the act, where such village is located in more than one town. The absence of any provision limiting the power of the commissioner to establish a boundary line around such a village must be deemed conclusive. On the other hand, the existence of such power does not conflict with any of the other provisions of the law. The taxes assessed are not to be apportioned in any event to the village or hamlet, but will go to the town in which the dealer or licensee resides. § 13. I have examined the other questions presented on this application, but do not regard them as worthy of extended consideration. The order prayed for should be granted. Order granted. Matter of Assessing and Determining the Transfer Tax on the Estate of PHILIP BECKER, Deceased. (Surrogate's Court, Erie County, March, 1899.) Transfer tax- No deduction for War Revenue duties nor for trustee's commissions. The legacy and succession duties imposed by the United States War Revenue Act of 1898 are not a "debt" of the decedent which can be deducted from his estate before assessing its value for the purposes of the transfer tax imposed by the laws of the state of New York. Although a will makes the duties of its trustees separable from their duties as executors, the estimated commissions of the trustees cannot be deducted from the estate before assessing its value for the purposes of the transfer tax, as the services of the executors in their capacity as trustees form no part of the administration of the estate and are of advantage only to the beneficiaries. Surrogate's Court, Erie County, March, 1899. [Vol. 26. APPEAL from the report of an appraiser appointed under the Transfer Tax Act. Upon the part of the state the appeal was taken because the transfer tax appraiser deducted in the above estate the amount of upwards of $10,000, which was due to the United States under the War Revenue Law. This deduction, which was made by the transfer tax appraiser, reduced the net value of the estate (to the extent of the amount due the United States) upon which the percentage would be figured for the state of New York, thereby reducing the tax otherwise coming to the state; in other words, they sought to declare the War Revenue tax a debt against the decedent's estate to be deducted and taken out of the same before the net value was fixed, upon which the state of New York would receive its percentage. The other question refers to trustees' commissions and they likewise claim that the commissions of a trustee should be estimated and then deducted before the net value of the decedent's estate was fixed. Percy S. Lansdowne, for state comptroller and treasurer of Erie county, appellants. Lewis & Lewis, for executors. MARCUS, S. This is an appeal by the comptroller of the state of New York and the treasurer of Erie county, New York, from the report of the transfer tax appraiser, fixing, assessing and determining the transfer tax upon the property of the above-named deceased, on the following grounds: "That the deduction made from the estate before assessing the transfer tax amounting to $10,000, the estimated amount of the national war revenue tax, is an erroneous and improper deduction, which should not be allowed." Upon the part of the executors and trustees, the point is raised that the appraiser has failed to deduct and allow the estimated commissions of the trustees under the will. As to the appeal by the comptroller and the county treasurer, it may safely be said that the Transfer Tax Act is the exercise of power which every state having sovereignty possesses of regulating the manner and terms upon which property, real and personal, within its dominion, may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it, and upon what conditions. Misc.] Surrogate's Court, Erie County, March, 1899. It may annex to such transmission those conditions that its interests or policy require. The percentage fixed by the state for its own use cannot be diminished even by the law of the United States. The title and possession of property, when transmitted upon the death of the owner, is by the consent of the state, not the United States. The state has the power to say who shall and who shall not take, and also the conditions which it desires to annex. "Upon the death of an individual, his estate reverts to the state, and inheritance and testamentary dispositions are the exercises of the sovereign power. The state has the absolute dominion over the estate, and taxes can be levied to the extent of that dominion." Matter of Moore, 90 Hun, 166. The state being the owner, may, if it thinks proper, direct that the property shall be taken entirely for its own use. This power clearly does not reside in the national government. It, therefore, seems clear that with such authority and absolute control, its policy as defined in this act taxing successions, and the percentage fixed for its own use cannot be diminished by first subtracting the tax fixed by the United States for war revenues. Whether the estimated commissions of a trustee should properly have been deducted by the transfer tax appraiser in fixing the net value of the estate of the deceased seems to be an open question. It has been held in the Matter of Westurn, 152 N. Y. 102, "The principle that, in administering the statute, debts, commissions and expenses of administration should be deducted in ascertaining taxable values, accords with the general practice and is permitted by a just construction of the law." There is no doubt as to the correctness of deducting the commissions of an executor or administrator in determining the net value of an estate, but after executors have paid the debts of a deceased, as also the tax to the state, and all other just and proper accounts, collected what is due, their duties, in so far as the state of New York and the other interested parties, apart from those mentioned in a will, are concerned, is at an end. When a testator determines after the close of the duties of executors, the property shall be turned over to trustees for the benefit of those ultimately entitled to receive it, it is in the nature of a luxury for the beneficiaries, so that when the testator decides. that such beneficiaries are, in his judgment, unable to prudently care for the property until after a particular time has elapsed, or for |