In re the Estate of Vinot — 26 N.Y. St. Rep. 610

Majority

p. 610

In the Matter of the Estate of Julius T. Vinot.

(Surrogate’s Court, New York County,

Filed July 18, 1889.)

Headnote

1. Collateral inheritance tax — Property or a non-resident decedent SUBJECT TO.

The property of a non-resident decedent within this state is by chapter

p. 611

713 of the laws of 1887, amending- § 1 of the act of 1885, subject to the tax.

2. Same — Remainder after a life estate.

A remainder after a life estate is subject to the tax.

3. Same — Bequest for maintenance of burial plot.

A bequest to be applied to the maintenance of a burial plot, etc., is not subject to the tax.

Gibson & Davis, for comptroller.

The decedent, in this case, died after the passage of the amendatory act of 1887, and therefore comes within ^he purview of chapter 713 of the Laws of 1887. Section 1 of that chapter provides: “After the passage of this act, all property which shall pass by will, * * * or, if such decedent was not a resident of this state, at the time of death, which property or any part thereof shall be within this state, * * *. shall be and is subject to a tax of five dollars on every hundred dollars.

The decedent, though a resident of ISTew Jersey, left both real and personal property within this state; and Justice Andrews, in delivering the opinion of the court of appeals in the Matter of Enston., 22 N. Y. State Rep., 569, holding that under the collateral inheritance tax act of 1885, neither real nor personal property of a non-resident is taxable in this state, says: “ By chapter 713 of the Laws of 1887, § 1 of the act of 1885 was so amended as to> subject to its operation the property within this state of a nonresident decedent. * * *”

The appraiser was therefore right in reporting the property as subject to the tax.

A further objection is made to the report because a remainder after a life estate was reported as subject to the tax.

The remainder is a vested one, there being a party in being who would take should the life estate -terminate, and the value of the remainder is also ascertainable; the appraiser was right in so reporting.

I think the bequest of one-half of the income of $2,000 to be applied to maintenance of the burial plot, etc., of decedent, should not have been reported as subject to tax; it should, so to speak, be looked upon as a personal expenditure, for' the benefit of the decedent, and as part of the funeral expenses, and, therefore, exempt.

Under the recent decision of the court of appeals in the matter of Catlin et al. v. Trustees of Trinity College et al., 22 N. Y. State Rep., 189, the other half of the income of $2,000 is subject to the tax.

An order should be handed up confirming the report of the appraiser in all respects, except as above indicated, and assessing and fixing the tax.