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In re Weiler's Estate

122 N.Y.S. 608 Court N.Y. Sur. Ct. English

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p. 608
In re WEILER’S ESTATE.
(Surrogate’s Court, New York County.
March, 1910.)

Headnote

Taxation (§'878[1] )—-Tbansfeb Tax—Pbopebty Subject—Do web Right.
A widow’s dower estate in lands of her deceased husband, which became vested on her marriage and consummate on the death" of her husband, independent of the husband’s will, and not by virtue thereof, was not subject to transfer tax.
[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 878.[1] ]
In the matter of the estate of Henry Weiler, deceased. Proceedings for the assessment of transfer tax.
Motion to vacate order assessing the tax granted, and case remitted to an appraiser.
Joseph McCloy, for petitioner.

The widow's estate of dower in the lands of the decedent was property, which became vested as an inchoate estate upon her marriage and consummate upon the death of her husband, independent of the will, and not by virtue thereof. Adsit v. Adsit, 2 Johns. Ch. 448 , 7 Am. Dec. 539 ; Lewis v. Smith, 9 N. Y. 502 , 61 Am. Dec. 706 ; Sandford v. Jackson, 10 Paige, 266; Konvalinka v. Schlegel, 104 N. Y. 125 , 9 N. E. 868 , 58 Am. Rep. 494 ; Gray v. Gray, 5 App. Div. 132 , 39 N. Y. Supp. 57 ; Kimbel v. Kimbel, 14 App. Div. 570 , 43 N. Y. Supp. 900 . It was, therefore, not subject to transfer tax, and in assuming it to be so both .parties were in error when the order fixing tax was made.

The motion to vacate the order and remit the matter to an appraiser for the purpose of correcting this error is granted. Matter of Scrimgeour, 175 N. Y. 507 , 67 N. E. 1089 ; Matter of Coogan v. Morgan, 162 N. Y. 613 , 57 N. E. 1107 ; Matter of Silliman, 175 N. Y. 513 , 67 N. E. 1090 ; Matter of Willets, 119 App. Div. 119 , 100 N. Y. Supp. 850 , 104 N. Y. Supp. 1150 , affirmed 190 N. Y. 527 , 83 N. E. 1134 . Settle order on notice.

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