(3.) SAME ASSESSING TRANSFER TAX - WHEN SURROGATE'S COURT WITH-
OUT JURISDICTION то DECLARE ESTATE OF DECEDENT EXEMPT UNDER
TRANSFER TAX LAW. See Matter of Drake..
- APPEAL-EVIDENCE- TAX
APPEAL WHEN ORDER ASSES8-
ING TRANSFER TAX AFFIRMED. See Matter of Mills...
(5.) TESTAMENTARY TRUSTEES - INTERMEDIATE JUDICIAL SETTLEMENT OF
WILLS
EXECUTORS AND ADMINISTRATORS
ACCOUNT
TRUSTEES. See Matter of Keane..
(6.) TAXES TRANSFER TAX PROPERTY PASSING
POWER OF APPOINTMENT REFUND OF TAXES - - ESTATE IN REMAINDER.
Upon the death of testator's widow the property passing by virtue of
her exercise of a power of appointment by will given by his will con-
tingent upon her remaining his widow is subject to a transfer tax as a
part of her estate. Matter of Tillinghast...
Where it appears that the contingent power of appointment has been
exercised, the surrogate has power to modify an order fixing a tax upon
the property as a part of the estate of the donor, but he has no juris-
diction to direct the state comptroller to refund the difference between
the amount of tax assessed by the original order and the amount assessed
by the modified order. Id.
The remainder estate passing as it did under the power of appointment
and not under the original will was not subject to a transfer tax. Id.
WHEN PROPERTY IN FOREIGN STATE NOT SUB-
JECT TO TRANSFER TAX IN THIS STATE.
Where decedent at the time of his death held the legal title to certain
real estate situated in the State of New Jersey neither it nor the money
unpaid upon contracts for the sale thereof is subject to a transfer tax in
this State. Matter of Wolcott..
279
(10.) SAME - TRANSFER TAX - DISTINCTION BETWEEN RESIDENCE AND NON-
RESIDENCE DOMICILE - DECLARATIONS BY DECEDENT PROCEEDING BE-
COMMON LAW RULES OF EVIDENCE.
FORE TAX APPRAISER NOT A‚“. TRIAL
See Mater of Martin.
(11.) SAME TRANSFER OF BONDS AND MORTGAGES ON REAL ESTATE SUBJECT
TO TAXATION.
A transfer of bonds and mortgages on real estate in this State by
virtue of a power of appointment exercised by the decedent is to be
regarded as his property for the purposes of the Transfer Tax Law and
is subject to taxation under the provisions of that law in force at the
date of his death. Matter of Warden..
347
(12.) TRUSTEES GIFT TO EXECUTORS IN TRUST - WHEN TITLE VESTED IN
REPRESENTATIVES PROVISIONS OF DECREE ON JUDICIAL SETTLEMENT OF
A gift to executors in trust for a certain person, the income to be
handed to her and at her decease the principal to go to" her daughter
who was living at the time the will took effect, is a vested remainder,
and upon the death of the remainderman title vested in her representa-
tives, and there being no unpaid debts and no ancillary representative
in this jurisdiction, all parties being before the court, the decree upon
the judicial settlement of the account of the proceedings of the testa-
mentary trustee should provide for payment to those entitled directly.
Matter of Van Kleeck...
417
REPORT OF TAX APPRAISER AS TO RATE OF
(13.) TAXES TRANSFER TAX
TAXTION UPON LEGACY DEDUCTIONS - EVIDENCE- TAX LAW, § 221a.
Where a transfer tax appraiser reported that a legatee under the will
was a grandniece of decedent and that the legacy should be taxed at the
rate of five per cent., but the evidence shows that decedent for more
than ten years immediately prior to her death stood in the mutually
acknowledged relation of parent to the legatee within the meaning of
section 221a of the Tax Law, the legacy to her is taxable at the rate of
one per cent. Matter of Kirtland..
265
The tax appraiser should have deducted from the assets of decedent
within the State of New York the expenses of administration and com-
missions allowed by the laws of this State and also the proportion of
the debts due to non-residents and administration expenses incurred in
the State of decedent's domicile which the net New York assets bore to
the entire assets of the estate. Id.
TRANSFER TAX ASSESSING TAX UPON MORTGAGE- - WHAT
IS SUFFICIENT PROOF AS TO VALUE OF MORTGAGE-APPEAL-EXECUTORS AND
ADMINISTRATORS
- CODE CIV. PRO., § 2753. See Matter of Bell... 337
(16.) SAME GIFT OF INCOME TO WIFE DURING LIFE WITH POWER TO DIS-
POSE OF ONE-HALF OF REMAINDER BY WILL- - WHEN NOT SUBJECT TO
TRANSFER TAX WHEN REMAINDER TAXABLE TAX LAW, § 230.
Decedent gave the income of all his estate to his wife during her life,
with power to dispose of one-half of the remainder by her will. He also
empowered her to use so much of the principal of the estate as she con-
sidered necessary for enjoyment and support, and provided for the dis-
position of any part of his estate not used by her during her lifetime,
or disposed of by virtue of the power of appointment. Held, that one-
half of the remainder over which the widow was given the power of
appointment was not presently subject to a transfer tax. Matter of
Under the provision of section 230 of the Tax Law that where property
is transferred in trust and the interests of the transferees are dependent
upon contingencies whereby they may be defeated the tax shall be im-
posed upon such transfer at the highest rate, subject to return on the
happening of a contingency whereby the property comes to a person
exempt from the tax, the one-half of the remainder not subject to
appointment is forthwith taxable. Id.
MENT BETWEEN A HUSBAND AND WIFE AS TO JOINT OWNERSHIP OF SECUR-
ITIES CONTRACTS.
Where an agreement made in 1913 between a husband and wife of the
first part and a trust company of the other part declares that securities
which were the subject of the agreement were owned by the husband and
wife jointly such statement is not so unalterably expressive of joint
ownership that it could not upon resort to the circumstances be found
consistent with ownership in common, but the circumstances tend only
to the conclusion that joint ownership was intended and effectuated.
Matter of McElway..
A provision of the agreement "that the same might be revoked" was
not applicable to the arrangement by which joint ownership was estab-
lished but was confined to the recall thereof between the parties
thereto. Id.
A stipulation of the agreement that the trustee should pay the income
of the securities to the husband and wife in equal shares was not incon-
sistent with joint ownership, and the only transfer, whether of the
securities mentioned in the contract or those which were later brought
within its operation, was a transfer consummated in the lifetime of the
decedent and was not then subject to a transfer tax, nor did it become
so under chapter 664 of the Laws of 1915. Id.
(21) TAXES TRANSFER TAX - TRUSTS- -TAX LAW, & 221.
A devise and bequest of property to a domestic incorporated village
in trust for the benefit perpetually of the worthy indigent women of
the town in which the village is located comes under both the spirit and
the letter of section 221 of the Tax Law providing exemption to chari-
table and benevolent institutions, and is not subject to a transfer tax.
Matter of Albright.
172
Bequest to “ VIVISECTION INVESTIGATION LEAGUE" SUBJECT
TO TRANSFER TAX - EXECUTOR ENTITLED TO COMMISSIONS AS TRUSTEE.
An executor and trustee is entitled to commissions in each capacity.
A bequest to the "Vivisection Investigation League," a corporation
organized for the investigation of vivisection both upon animals and
upon human beings, and for carrying on any work for the purpose of
rousing public sentiment against the evils of vivisection, is subject to a
transfer tax. Matter of Howard, .
345
(23) Whis - TRANSFER TAX THE TERM "CHILDREN" DOES NOT INCLUDE
GRAYDORIT DREY, UNLESS THERE IS SOMETHING IN THE WILL TO SHOW THAT
THE WORD WAS SO USED EXERCISE OF POWER OF APPOINTMENT BY BENE-
POTARY OF TRUST FUND WHEN APPOINTEES THERFOF DO NOT TAKE UNDER
ORMINAT WILL SO AS TO AVOID PRANSFER TAX. See Matter of King 536
- WHEN NEPHEWS EX-
PRESSLY DISINHERITED DO NOT TAKE WHEN SURROGATE'S DECREE NOT RES
See Matter of Leonard..
(2.) TRUSTS-DEVISE IN TRUST - INFANTS WILLS WHEN DEVISE TO
TRUSTEES SUBJECT TO POWER OF SALE — ACCOUNTING BY TRUSTEES.
Testator, who left but one minor child, gave one-third of his estate to
his executors in trust to pay the net income to his wife during her life
or widowhood, with direction in the event of her death or remarriage
to pay to testator's children then under age the net income of a separate
one-fifteenth of said trust estate. Held, that in the event of death or
remarriage of testator's widow each child then of age took one-fifteenth
of the fund as a devise. Matter of Magenheimer.
Where as to the remaining two-thirds of testator's estate one-fifth
thereof or two-fifteenths of the estate was devised to each child who
should be of age at the death of testator, any child then under age took
a devise in trust of-one-fifteenth of the estate the net income thereof
payable to him during minority and the principal of such two-fifteenths
at his majority. Id.
Where a devise of testator's lands whether to trustees or individuals
is subject to a power of sale in the executors alone, though they are
also the trustees, they, on accounting as trustees, are only entitled to
commissions upon that portion of the estate devised to them in trust. Id.
(5.) TRUST-TRUST FOR CHARITABLE USES WHEN MOTION BY ATTORNEY-
GENERAL TO COMPEL TRUSTEE TO SUBMIT HIS PLAN OF DISTRIBUTION SHOULD
BE DENIED.
A motion by the attorney-general to compel a trustee under a will
creating certain trusts for charitable and benevolent uses and purposes
to submit his scheme and plan of distribution of the funds of the estate
should be denied, where there is nothing in the moving papers to show
that the trustee is not performing his duties properly, and there is no
doubt as to the intention of the testatrix, or the duties of the trustee as
her representatives. Buell v. Gardner...
116
(6.) TRUSTS WILL DEFINITION OF CHARITABLE TRUSTS CONSTRUC-
TION OF WILL BEQUEATHING A TRUST FUND OF WHICH THE INCOME IS TO BE
USED IN MAINTAINING A HOME FOR WOMEN OF A CLASS NAMED THEREIN
VALIDITY OF SUCH TRUST NOT AFFECTED BECAUSE A PREFERENCE IS GIVEN
TO CERTAIN PERSONS OF THE CLASS SPECIFIED WHEN POSSIBLE INSUF
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