In re the Transfer Tax upon the Estate of De Lamar

Headnote

Tax — transfer tax — devise by testator of more than one-half of estate to charity — where daughter, who is sole heir and next of hin, raises no objection and waives her right to inherit, transfer tax may not be im-posed upon amount which otherwise would have passed to her. Matter of De Lamar {Estate), 203 App. Div. 638 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 26, 1922, which reversed so far as appealed from an order 'of the New York County Surrogate’s Court assessing a transfer tax upon the estate of Joseph R. De Lamar, deceased. Testator left a daughter as his sole heir at law and next of kin. He devised more than one-half of his estate to charitable institutions. The surrogate held that under section 17 of the Decedent Estate Law such portion of the estate so devised as exceeded one-half thereof passed to the daughter and was taxable as against her, notwithstanding there was no objection by the daughter to the devise of the residuary estate as aforesaid, and that there was submitted to the surrogate a waiver by said daughter of all her rights under said section 17.