Hyperlawhypertext legal database In re the Appraisal under the Transfer Tax Law of the Estate of McMurray 96 A.D. 128

← Cases

In re the Appraisal under the Transfer Tax Law of the Estate of McMurray

96 A.D. 128 Court N.Y. App. Div. English

Delivered by Chester, J.:

Contents

Majority

p. 128
In the Matter of the Appraisal under the Transfer Tax Law of the Estate of John McMurray, Late of Delhi, Deceased. Otto Kelsey, as Comptroller of the State of New York, Appellant; John A. Hunt, as Executor, etc., of John McMurray, Deceased, Respondent.

Headnote

Transfer tax — a beneflcia/i'y under a will, who is entitled to a share of an estate exempt from taxation only by reason of its amount and her relationship to the deceased, is not “specifically exempted” from taxation.
A decedent, by bis will, gave ode-half of his property to his niece, Lizzie T, Cramer, and the other half to his nephew, Charles F. Hunt, and Gussie Hunt, his wife, and to his-nephew, John A. Hunt, and Sarah Hunt, his wife. The value of the share of the said Lizzie T. Cramer was $434.04 and the value of the shares of the two nephews and their respective wives was $108.51 each.
. Held, that although the share passing to Lizzie T. Cramer was not taxable, because of its amount and of the fact that for a period of twenty or twenty-five years prior to his death she and the testator had stood in the mutually acknowledged relation of parent and child, such share should be added to the shares of the nephews and their respective wives for the purpose of determining whether the aggregate estate transferred exceeded $500 and of rendering the shares of the nephews and their wives taxable;
p. 129
That, while the share of Lizzie T. Cramer was not taxable, she was not a person “ specifically exempted” from taxation within the meaning of section 22 of the Transfer Tax Law (Laws of 1892, chap. 399).
Appeal by Otto Kelsey, as Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of Delaware, entered in said Surrogate’s Court on the 7th day of March, 1904, setting aside an order entered in said court on the 20th day of November, 1899, assessing a transfer tax upon the estate of John McMurray, deceased.
Barna Johnson, for the appellant.
John A. Kemp, for the respondent.

The decedent, John McMurray, died in Delaware county March 4,1896. By his will, proven in that county March 8, 1896, he gave one-half of his property to his niece, Lizzie. T. Cramer, and the other half to his nephew, Charles F. Hunt, and Grussie Hunt, his wife, and his nephew, John A. Hunt, and Sarah Hunt, his wife. The decedent and said Lizzie T. Cramer, for about twenty or twenty-five years prior to his death, had occupied the mutually acknowledged relation of parent and child, which relationship began when she was about two .years old. The value of the property of the decedent at the time of his death was $868.09, of which the share of Lizzie T. dramer was $434.04, and the shares of the two nephews and their respective wives were $108.51 each, aggregating $434.04. The order appealed from reverses an order imposing a transfer tax upon the shares of such nephews and their respective wives.

The only question presented upon this appeal is whether the share going to Lizzie T. Cramer, which is not taxable, because of its amount and of the relationship which she bore to the testator, can be added to the shares of the nephews and their respective wives, in order to make the aggregate estate transferred exceed $500.

The claim of the respondent is that said Lizzie T. Cramer is a person “ specifically exempted ” from the provisions of the Transfer Tax Law (Laws of 1892, chap. 399) within the meaning of that term as used in section 22 of such law, and for that reason her share cannot lawfully be added to the shares of the nephews and their wives

p. 130
in order to make the aggregate estate exceed $500, for the purpose of sustaining a tax upon the shares of such nephews and their wives; This question has been decided adversely to the contention of the respondent. (Matter of Corbett, 55 App. Div. 124 ; affd., 171 N. Y. 516 ; Matter of Hoffman, 143 id. 327; Matter of Garland, 88 App. Div. 380 .)

While the share of Lizzie T. Cramer is not taxable, yet under these authorities she is not a person “ specifically exempted ” from ■taxation as is a bishop or a religions corporation, for the reason that if the estate had been sufficiently large to" -bring her share within the provisions of the law she would then have been a taxable person under it.

.The order of the Surrogate’s Court should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements.

Cases cited