In re Bernard's Estate — 152 N.Y.S. 716

Majority

p. 716

In re BERNARD’S ESTATE.

(Surrogate’s Court, New York County.

March 20, 1915.)

Headnote

Death <S=>2—Presumption—Lapse of Time.

Decedent made a deposit in a bank in 1819, and failed to claim it thereafter, and letters of administration on her estate were issued to the public administrator in 1901. At his application, an inheritance tax of $109.18 was assessed upon the deposit and accrued interest. Held, on application by such administrator to vacate the order fixing the tax, that no presumption could be indulged in that the depositor died prior to 1885, when the first inheritance tax law was passed, since, when the time of death is material in any action, it cannot rest on presumption, but must be established by direct proof.

[Ed. Note.—For other cases, see Death, Gent. Dig. §§ 1-3; Dec. Dig. <§n^2.]

p. 717

Application by the public administrator to vacate an order fixing the inheritance tax on the estate of Mary Bernard. Denied.

Frank W. Arnold, of New York City, for petitioner.

Lafayette B. Gleason, of New York City, for state comptroller.

This is an application by the public administrator to vacate an order fixing tax, entered on the 24th of July, 1911. A similar application, made in November, 1911, was denied by this court. The present papers contain little additional evidence.

The decedent deposited the sum of $47 in the Bank for Savings in the City of New York in the year 1819, and this deposit was never withdrawn by her. There is no proof that a minor could not make a deposit in a savings bank at that time. Letters of administration were issued to the public administrator in 1901, and the $47, with accumulated interest, was thereafter paid to the city chamberlain. Upon the application of the public administrator a tax of $109.18 was assessed thereon.

The present application cannot be granted, unless the court finds that the decedent died prior to 1885, when the first inheritance tax law was passed in this state. The failure of the decedent to demand payment of the deposit may be attributed to forgetfulness, owing to the comparative smallness of the amount deposited, or to acquisition of a residence or domicile in some distant state. The fact that she did not demand payment would not, of itself, justify the court in presuming that she died some time prior to the year 1885. When the time of death is material, it cannot rest on presumption, but must be established by proof. Nepean v. Doe, 2 M. & W. 894.

Application to vacate order fixing tax denied.