In re Lynn's Estate — 70 N.Y.S. 730

Majority

p. 730

(34 Misc. Rep. 681.)

In re LYNN’S ESTATE.

(Surrogate’s Court, Onondaga County.

April, 1901.)

Headnote

Transfer. Tax—Construction on Will.

Where testator devised all his real estate to his wife for life, “to be retained or disposed of as she may think proper,” without any remainder,- ■or trust being limited or created, the devisee takes, under Laws 1896,’ c. 547, § 131, an absolute estate; and it is error to assess a transfer tax on testator’s heirs at law on the theory that, merely because the wife died without executing her power of disposition, the real estate descended from him to them.

In the matter of the estate of Eeuel Lynn, deceased. From assessment of a transfer tax on certain realty of decedent, certain of the heirs appeal. Assessment set aside.

p. 731

William Kennedy and William G. Cady, for appellant.

John McLennan, for respondent state comptroller.

The appeal in this proceeding is from the assessment of a transfer tax upon the supposed inheritance by the nephews and nieces of the deceased of certain undivided shares of the real estate of said deceased under the statutes of descent. The real estate consists of a farm of 56 acres in the town of Clay, in this county. The theory of the appraiser upon whose report the assessment was made is that because a power of disposition given by the will of the deceased to the testator’s wife, who survived him, was never exercised by her, the premises in question descended to the heirs at law of the testator, some of whom are the nieces and nephews whose shares have been taxed. The testator died on the 30th day of November, 1899. His wife died about a month after-wards. The testator made the following disposition of his real property by the first clause of his will, as follows:

“First. I give and devise all my real estate, of what nature or kind soever, to my wife, Maria Lynn, during her natural life, to be retained or disposed of as she may think proper.”

The widow never in any manner disposed of the real property mentioned.

These facts bring the case precisely within the provisions of section 131 of the real property law of this state (Laws 1896, c. 547), which is as follows:

“Sec. 131. When Grantee of Power Has Absolute Fee. Where such [i. e. by reference to preceding sections, absolute and not accompanied by a trust] a power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee is entitled to an absolute fee.”

Here the power of disposition given by the will to the widow and life tenant was absolute, and was not accompanied by any trust; neither was any remainder limited on her estate. By reason of this statute, therefore, she acquired an absolute fee in the lands in question, under the devise contained in the will of her husband, and such lands have not descended to the testator’s heirs at law. The assessment of a tax against his heirs was plainly erroneous, and should be set aside. An order accordingly may be entered upon five days’ notice. No costs are allowed.

Assessment set aside. No costs.