In re the Transfer Tax Upon the Estate of Hawes

Headnote

Matter of Hawes, 175 App. Div. 933 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first, judicial department, entered November 24, 1916, which affirmed an order of the New York County Surrogate’s Court assessing a transfer tax upon certain securities held at the time of decedent’s death pursuant to a deed of trust. Decedent was a resident of Massachusetts. In 1864, when the deed was executed, no part of the trust property was either actually or constructively in the state of New York. Subsequently to the execution of the deed of trust, but before the decedent died, the trustees sold part of the trust property and with the proceeds purchased certain shares of stock of New York corporations which the transfer tax appraiser has reported taxable in this proceeding. On the part of the appellant, it is claimed that the assessment of the tax in this case is illegal, inequitable and improper for the following reasons: 1. The title to the property did not pass from the decedent to the beneficiary for the reason that the title was at all times in the trustee and came to

the beneficiary from the trustee, under the terms and provisions of the deed of trust. 2‘. Under the deed of trust, the decedent’s next of kin and heirs at law had either a vested interest or a contingent interest which accrued in 1864, twenty-one years before the passage of the first Transfer Tax Act, and such interest cannot he constitutionally diminished by the assessment of a tax under a Transfer Tax Act subsequently passed. 3. The transfer of title from decedent to the trustees was effected in a foreign state and the state of New York had no jurisdiction over the person who executed the, deed, nor dominion over the property transferred by the deed, and none of the rights of the individuals mentioned in the deed accrued by reason of any privilege granted by the state of New York.