In re the Estate of Hopkins — 19 N.Y. St. Rep. 516

Majority

p. 516

In the Matter of the Estate of Louisa S. Hopkins, Deceased.

(Surrogate’s Court, Westchester County,

Filed September 1887.)

Headnote

1. Collateral hjheritance tax—Limitation of to an estate of five HUNDRED DOLLARS REFERS TO THE AMOUNT GIVEN TO A LEGATEE OR DE-VISEE.

The provisions of the Lavra 1885, chap. 783, to the effect that “ an estate which may he valued at a less sum than $500, shall not be subject ” to the duty or tax provided by the act refers not to the estate of deceased persons, but to the interest of the one to whom itis given or by whom it is inherited.

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2. Same—’When estate becomes subject to said tax.

The testator gave the residuary of her estate, amounting to upwards of §6,000, to her executor in trust to convert and invest and to pay the net income to her brother, and also in his discretion to pay to said brother from §200 to §300 a year, of the principal for his support, and at the death of the brother, what might remain was given to certain other persons. Held,, that the tax could not be fixed nor recovered during the life-time of the brother. That it would be impossible to ascertain the amount that might remain after the death beforehand.

The testatrix died, never having been married, and leaving her surviving one brother. By her will she gave to one Anine E. Hyatt, the sum of $150, and also her wearing apparel, household furniture, silverware, certain pictures and jewelry and personal ornaments. To three others, who were distant relatives, she gave an amount aggregating $350, and finally she gave the residue of her estate, amounting to upwards of $6,000, to her executor in trust, to convert andinvest, and directed him to pay the net income to her brother, and also gave him the discretion to pay to said brother $200 or $300 a year, of the principal, if required for his support, and directed that at the death of the brother, whatever remained was to go to the distant relatives to whom the other bequests had been made.

Clarence H. Frost, for executor.

When the opinion in the Matter of Jones ( 10 N. Y. St. R., 163 ), was prepared, the question as to construction of the proviso appended to section 1 of the act of 1885, to the effect that“ an estate which may be valued at a less sum than $500, shall not be subject ” to the duty or tax provided by the act, had not been presented for consideration; but it was then held that the estates to be appraised under the provisions of the 13th section, were not the estates of deceased persons, but of those to whom they were given, or by whom they were inherited.

It would seem in harmony with this view to determine that the estates mentioned in the proviso are the same. I concur, therefore, with Surrogates Lott (Matter of Smith, 5 N. Y. St. R.,380), and Rollins (Matter of McCready, 10 N.Y. St. R. 696 ), in holding that any estate devised, inherited, bequeathed or the subject of distribution to any person, which shall be valued at less than $500, is not subject to the tax provided by said act. The language in which the act is couched , does not render the meaning very perspicuous. Ordinarily, the word “estate” would not be employed to designate the interest of a legatee in a gold watch, a diamond necklace, a horse, or household furniture bequeathed to him; and yet the property so given would, strictly, become his personal estate. The word is more frequently used in connection with an interest in land; still it is applicable to an interest in any kind of property, personal and real.

An appraiser was appointed to fix the value of the “ estates ” bequeathed by the will in question. The articles of wearing apparel, household furniture, silverware, pictures, etc., etc., bequeathed to Annie E. Hyatt, other than the $150 in money, were appraised, and the value fixed at

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$257.65. Add the legacy in money, and the whole amount is $107.65. Hence the legacy is not subject to the tax. The other legacies stand in the same position in this respect.

The value of the estate, or the amount of it, which may remain after the death of the brother, Peter H. Hopkins, it is impossible to ascertain, with a view to fixing the tax it should yield. It is also impossible to determine how long he may live, and how much of the principal fund may be paid, him by the executor, in the exercise of the limited discretion conferred upon him by the will. Indeed, it is possible that the whole residuum may be exhausted in the use of the discretionary power. In case of his death, the amount remaining (if any) will be known. When that shall have occurred, whether the tax can then be fixed and recovered under the provisions of the act, it is needless to inquire. It cannot be done now. As the matter stands, all the legacies are free from the tax.