Majority
Headnote
Transfer Tax—Valuation of Remainder.The testator died April 27, 1889. By his will, after providing for an annuity of $20 a month to a stranger, he gives his residuary estate in trust to his executors, to pay the income to his wife for life. If the income is insufficient to realize $5,500 a year, they are directed to invade principal to make up that amount. Upon the death of his wife, after bequeathing certain specific sums of money, the remainder is directed to be divided equally •between the children of certain relatives by marriage. In 1895, prior to any accounting, an appraiser was appointed, who made certain investigations and computations, and reported that the interest of the widow was not taxable, and that the rights of the other legatees would not vest in enjoyment until after the death of the widow, and that it was not yet ascertainable to whom the estate would pass upon her death, and that he had left them for future appraisement after her death. The widow died November 29, 1900, having lived 11 years and 7 months after the testator, and having received $5,500 per annum, which amounted to $63,666.43. An accounting was had in this court, and a decree made on June 10, 1901, which approves the accounts of the trustees, and fixes the shares of the residuary legatees. This proceeding was commenced by the state comptroller immediately after the making of that decree. In the decree the shares of the legatees, taking the residuary estate, are $6,520.33 each, payable June 10, 1901. By the report of the appraiser a tax is imposed against each of them on the sum of $5,638.81, on the theory that each legacy was worth that sum on April 27, 1889, the day of the death of the testator. There is a manifest error here, since the difference is plainly not enough to cover interest for over 11 years. The discrepancy between the computations and the facts is caused by the fact that the appraiser started with the appraised value of the estate at the time of the death of the testator, and deducted only the estimated value of the annuity to the widow, based upon the accepted tables of probable mortality. The widow was 69 years of age at the death of her husband, and at that time her chance of life was less than 6 years. She actually survived him about twice as long as that. The statute of 1887 (chapter 713) required a life estate sought to be taxed to be appraised on this theory, notwithstanding it resulted in error (In re Jones, 28 Misc. Rep. 356 , 59 N. Y. Supp. 983 ); but I do not find myself bound in this way in estimating the value of a legacy, now just due, and the actual
Appeal sustained, and matter remitted to appraiser for further report.
Cases cited
- In re Jones 28 Misc. Rep. 356 p. 1125