Estate of Wallace — 18 N.Y. St. Rep. 387

Majority

p. 387

Estate of Benjamin Wallace.

(Surrogate’s Court, New York County,

Wiled October 12, 1888.)

Headnote

Collateral inheritance law—Appraisement of property under.

An appraiser appointed under the collateral inheritance law should only-report upon property subject at that time to the tax prescribed by the law. and in case of contingent interests, upon the happening of the contingency, upon which they should take effect and the appraisment should he had

Graham McAdam, for comptroller; Varnum & Harrison, for executors; Richard L. Sweezy, special guardian for Wallace White.

In this case the appraiser reports that there are certain items and interests in property passing under said will which cannot be appraised by reason of

p. 388

their indefinite, uncertain and contingent character, and says they are not, in his opinion, subject to taxation. These are:

First. The principal of the fund of $7,000, held in trust tor Ann Irving, as it is impossible to determine, prior to her death, whether said remainder is taxable either in whole or in part or not at all, it being entirely contingent upon whether Ann Irving leaves issue living, or if not, what if .any, of the residuary legatees under the will of the testator may survive her.

Second. Whether the principal of the fund, amounting to ■one-fourth of the residuary estate to be held in trust under said will during the life-time of his sister Sarah, is subject to taxation or not, it being wholly contingent upon whether said Sarah leaves issue living at her death, or whether testator’s sister Ann, the remainderman as to this fund, should survive; and, third, whether the principal of the fund, amounting to one-fourth of the residuary estate to be held in trust under said will during the life-time of the testator’s sister, Ann White, is taxable or not, cannot now be determined, it being wholly contingent upon whether the said Ann White shall leave issue living at her death.

The comptroller objects to these findings: First, upon the ground that the statute makes express provision for the taxation of such estates as this, i. e., estates in remainder passing to collateral heirs upon the expiration of life estates vested by the will in the sisters. Second, that the appraiser ■errs in saying the interests cannot be appraised because of "their indefinite, uncertain and contingent character; and in saying that the question whether any tax is to become due or not depends upon the contingency of the death of sister Ann before that of sister Sarah, in the one case, and of the death of sister Sarah before that of sister Ann in the other •case, and claims that the appraiser should be directed to obtain the valuation of the estate in remainder going to collateral heirs as dependent on two lives in being, in the manner prescribed by the act, upon the ground that the estates given to the sisters are not taxed, but that the taxable interests are those going to collateral heirs, and that “there is, in each case, an estate in remainder positively set apart for collateral heirs,” “ and that the death of both sisters is .a certainty, and upon the death of both, both life estates cease, and the property goes to collateral heirs of the testator, and that the minimum of such collateral estate is susceptible of exact valuation, and asks that the appraiser be directed to amend his report accordingly. The report should be referred back to the appraiser because he has reported certain legacies which are exempt and then exempted them. I find that the interests of the collateral heirs are not indefeasible, in that they take only upon the contingency of their surviving the life tenant, and that, at the present time, their interests are not such that they can be definitely determined and taxed. The appraiser should only report upon

p. 389

the property now subject to the tax, and when the contingency happens and the number and interests of the collateral heirs are definitely and exactly determined^ another appraisement should then be made and the tas; assessed upon their interests then to be ascertained. In the Matter of the Estate of George W. Bruce, the order of May 8, 1888, after assessing and fixing the tax upon a number of legacies, provides; “And it is further ordered and adjudged that the question of fixing the tax on the remainder of the trust for the benefit of George Bruce Brown, which has been appraised at $64,621, and which will pass under said will of the testator upon the death of said life tenant, George Bruce Brown, be and the same is hereby reserved subject to a further order of the surrogate.” This is what should be done in this case.

An order should be made referring the report back to the appraiser, reappointing him, and directing him to report only what property passing by the will of decedent is now subject to the tax. This is merely formal. The substance of the appraiser’s report is sound. My opinion in Estate of Astor (14 N. Y. State Rep., 478), will fully disclose my views as to the duty of the appraiser, and the form and substance of his report in all cases arising under this act.