In re the Estate of Stewart

Mrs. Stewart died on the 25th day of October, 1886, and by her will and codicils thereto left one-half of her residuary estate to Henry Hilton, as trustee, with power of appointment to and among such of the legatees and in such proportions as he might see fit. On January 16, 1890, he made such appointment among certain of the legatees, whose property in the estate in virtue of such appointment is liable to the tax. The appraiser, who had been appointed prior to the exercise of the power of appointment, did not report until after it had been exercised, and included in his report as subject to the tax the amount apportioned to the legatees by the trustee acting under his power.

It is claimed by counsel for the executors and these appointees that such amounts are not subject to the tax, because the act contemplates only the interests accruing at the date of death of the decedent, and as these amounts were not determinable until the power of appointment had been exercised, and as it was impossible to ascertain whether any or all of said residuary estate was, or would be, subject to the tax; therefore, that, as the estates were such as were not contemplated by the act, being mere possibilities, and not even expectant or contingent, they were exempt, and contend that Ruger, Ch. J., in the Matter of Cager, 111 N. Y., 350 ; 19 N. Y. State Rep., 497, in delivering the opinion of the court, considered just such a case. He says: “Whether an appraisal of the value of these devises, for the purpose of taxation, may be made when they eventually come to the possession of the devisees, we are not called upoff now to determine. It may be that the tax will be altogether lost to the state if an appraisal is not now allowed ; but if so the fault lies in the act itself, and not in the construction which its language requires to be put upon it.”

This language of the learned judge is obiter, but entitled to great consideration; it is not, however, binding upon the courts below, nor is that case at all apropos.

It is true that at the date of the death of Mrs. Stewart, the appraiser could not determine either the value of the estate which might eventually become taxable, or the persons to whom it would pass, and he could not, therefore, make any appraisal. It has been the practice of this court to suspend all proceedings as to such •contingent estates until such contingencies happen, with a view to the appointment of an appraiser at that time to make the appraisement.

In the Matter of Benjamin Wallace, 18 N. Y. State Rep., 387, which was decided by me, I said: “ The appraiser should only re

In the Matter of Clark, 1 Con., 431; 22 N. Y. State Rep., 354, I used substantially the same language in holding that, until the contingency is decided, the matter must remain suspended, and then it can be determined to whom the property will pass, and whether or not it is subject to the tax.

The claim that at the death of this decedent there was no estate that could be held subject to the tax, and that therefore there can be no tax assessed now, cannot be sustained. It is a well settled principle of the law that where parties take under a power of appointment they take under the instrument creating the power, so that the parties named by Henry Hilton, under the power given him, must be regarded as the persons selected by Mrs. Stewart. It is true that their interests did not accrue until the date when the power was exercised, to wit, January 16, 1890, at which date also the tax upon their interests accrued, thus entitling them to-the rebate of interest if paid within six months from that date.

By § 4 of the act of 1887 (which by chap. 479, Laws of 1889, is made applicable), if the tax is paid within eighteen months from the death of decedent, no interest is charged. By § 5 of the same act it is provided that “ the penalty of ten per cent, per annum imposed by § 4 hereof, for the non-payment of said tax, shall not be charged where in cases by reason of claims made upon the estate, necessary litigation, or other unavoidable cause of delay, the estate of any decedent, or a part thereof, cannot be settled at the end of eighteen months from the death of the decedent, and in such cases only six per cent, per annum shall be charged upon said tax from the expiration of said eighteen months until the-, cause of such delay is removed.”

It is claimed here that the proceeding instituted by Rosalie Butler on October 28, 1887, effected a stay of all proceedings in virtue of § 2650 of the Code of Civil Procedure, which provides that the executor must suspend, until a decree is made upon the petition for revocation of probate, all proceedings relating to the estate except for the recovery or preservation of property, the collection and payment of debts, and such other acts as he is expressly allowed to perform by an order of the surrogate, made upon notice to the petitioner.

Section 406 of the Code provides, when the commencement of an action has been stayed by injunction or other order of the court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action.

Neither of these two sections affect this case. There is no provision of law suspending the payment of interest during the time of the litigation or unavoidable cause of delay. Section 5 of the act of 1887 only relieves from the penalty, but not from the interest

I must hold, therefore, that the tax on the one-half of the re

Submit order confirming the report of the appraiser and assessing and fixing the tax.