In re Roebuck's Estate

140 N.Y.S. 1107, 79 Misc. 589

• Court: New York Surrogate's Court
• Decided: February 15, 1913
• Status: Published

Opinion

KETCHAM, S.

[1] Question is made as to the rate of taxation upon legacies to children of the decedent’s illegitimate daughter, who themselves were born in lawful wedlock.

The order appealed from is right, unless these children of the daughter are lineal descendants of the decedent under the provision which prescribes 1 per centum as the rate of taxation upon transfers to “any lineal descendant of such decedent * * * born in lawful wedlock.” Tax Law, § 221 (Consol. Laws 1909, c. 60).

[2] “A lineal descendant is one who is in the line of descent from a certain person.” But the line of descent is not merely derived from the communication of blood by animal generation. “The line of descent is the course that property takes according to law when the owner dies.” Matter of Beach, 154 N. Y. 242, 48 N. E. 516; Matter of Cook, 187 N. Y. 253, 261, 79 N. E. 991.

These cases forbid the argument, made in behalf of the legatees, that the words “lineal descendants” in the statute cited supra are not used in their legal and technical sense. Under these authorities there is no line of descent between the decedent and these legatees, and they cannot be his descendants.

The order in this respect is affirmed.

Order affirmed.