In re the Transfer Tax Assessed Upon the Estate of Lynn

Majority

p. 681

Matter of the Transfer Tax Assessed Upon the Estate of Reuel Lynn, Deceased.

(Surrogate’s Court, Onondaga County,

April, 1901.)

Headnote

Transfer tax — When the grantee of a power of disposition has an absolute fee — L. 1896, eh. 547, § 131.

Under a testator’s devise of ail his real estate to his wife during life “ to he retained or disposed of as she may think proper,” no remainder or trust being limited or created, she takes an absolute fee; and hence it is erroneous to assess a transfer tax on the testator’s heirs-at-law on the theory that the real estate descended from him to them merely because the wife died without executing her power of disposition.

Appeal from an assessment of a transfer tax upon the supposed inheritance by the nephews and nieces of deceased, of certain undivided shares of real estate of said deceased under the Statutes of Descent.

William Kennedy and William G. Cady, for appellant.

John McLennan, for State Comptroller, respondent.

The appeal in this proceeding is from the assessment of a transfer tax upon the supposed inheritance by the

p. 682

nephews and nieces of the deceased, of certain undivided shares of the real estate of said deceased under the Statutes of Descent. The real estate consists of a farm of fifty-six acres in the town of Olay,- in this county. The theory of the appraiser upon whose report the assessment was made, is that because a power of disposition given by the will of the deceased to the testator’s wife, who survived him, was never exercised by her, the premises in question descended to the heirs-at-law of the testator, some of whom are the nieces and nephews whose shares have been taxed.

The testator died on the 30th day of Rovember, 1899. His wife died about a month afterwards.

The testator made the following disposition of his real property by the first clause of his will, as follows:

" First, I give and devise all my real estate o-f what nature or kind soever to my wife Maria Lynn, during her natural life to be retained or disposed of as she may think proper.”

The widow never in any manner disposed of the real property mentioned.

These facts bring the case precisely within the provisions of section 131 of the Real Property Law of this State (L. 1896, chap. 547), which is as follows: “ § 131. When grantee of power has absolute fee.— Where s-uch (i. e., by reference to preceding sections, absolute and not accompanied by a trust) a power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee is entitled to an absolute fee.”

Here the power of disposition given by the will to the widow and life tenant was absolute aud was not accompanied by any trust; neither was any remainder limited on her estate.

By reason of this statute, therefore, she acquired an absolute fee in the lands in question, under the devise contained in the will of her husband, and such lands have not descended to the testator’s heirs-at-law.

The assessment of a tax against his heirs was plainly erroneous and should be set aside.

An order -accordingly may be entered upon five days’ notice. Ro costs are allowed.

Assessment set aside. Ro costs.