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In re Roebuck's Estate

140 N.Y.S. 1107 Court N.Y. Sur. Ct. English

Contents

Majority

p. 1107
(79 Misc. Rep. 589.)
In re ROEBUCK’S ESTATE.
(Surrogate’s Court, Kings County.
February, 1913.)

Headnote

1. Taxation (§ 880%[1] )—Transfer Tax—Rate—Legacies to Illegitimate Children.
The children of a decedent’s .illegitimate daughter, born in lawful wedlock, not being his lineal descendants within Tax Law (Consol. Laws 1909, c. 60) § 221, providing that transfers to “any lineal descendant of such decedent * * * born in lawful wedlock” shall be taxed with 1 per centum, the legacies to them were taxable at the rate of 5 per cent
[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 886%.*]
2. Taxation (§ 886%*)—Transfer Tax—“Lineal Descendant"—“Line of Descent.”
As used in Tax Law (Consol. Laws 1909, c. 60) § 221, prescribing a 1 per cent, rate of tax upon transfers to any “lineal descendant of decedent * * * born in lawful wedlock,” the term “lineal descendant” means one who is in the line of descent from the decedent, giving to the phrase “line of descent” its legal and technical meaning—the course that property takes according to law when the owner dies.
[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 886%.*
For other definitions, see Words and Phrases, vol. 5, p. 4172.]
Appraisal under the Transfer Tax Acts of the property of Samuel Roebuck, deceased. From an order assessing and fixing the transfer tax, certain parties appeal. Affirmed.
Seldon Bacon and Leonard B. Smith, both of New York City, for appellants.
Harry Howard Dale, of Brooklyn (James W. Redmond, of Brooklyn, of counsel), for state comptroller.

[1] Question is made as to the rate of taxation upon legacies to children of the decedent’s illegitimate daughter, who themselves were born in lawful wedlock.

The order appealed from is right, unless these children of the daughter are lineal descendants of the decedent under the provision which prescribes 1 per centum as the rate of taxation upon transfers to “any lineal descendant of such decedent * * * born in lawful wedlock.” Tax Law, § 221 (Consol. Laws 1909, c. 60).

[2] “A lineal descendant is one who is in the line of descent from a certain person.” But the line of descent is not merely derived from the communication of blood by animal generation. “The line of descent is the course that property takes according to law when the owner dies.” Matter of Beach, 154 N. Y. 242 , 48 N. E. 516 ; Matter of Cook, 187 N. Y. 253 , 261, 79 N. E. 991 .

These cases forbid the argument, made in behalf of the legatees, that the words “lineal descendants” in the statute cited supra are not used in their legal and technical sense. Under these authorities there is no line of descent between the decedent and these legatees, and they cannot be his descendants.

The order in this respect is affirmed.

Order affirmed.

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