In re the Estate of Bernard

14 Mills Surr. 122, 89 Misc. 705, 152 N.Y.S. 716

Opinion

Fowler, S.

This is an application by the public administrator to vacate an order fixing tax, entered on the 24th of July, 1911. A similar application made in Fovember, 1911, was denied by this court.. The present papers contain little additional evidence.

The decedent deposited the sum of forty-seven dollars in the Bank for Savings in the city of Few York in the year 1819, and this deposit was never withdrawn by her. There is no proof that a minor could not make a deposit in a savings bank at that time. Letters of administration were issued to the public administrator in 1901, and forty-seven dollars with accumulated interest was thereafter paid to the city chamberlain. Upon the application of the public administrator a tax of one hundred and nine dollars .and eighteen cents was assessed thereon. The present application cannot be granted unless the court finds that the decedent died prior to 1885, when1 the first inheritance tax law was passed in this State. The failure of the decedent to demand payment of the deposit may be attributed to forgetfulness owing to the comparative smallness of the amount deposited, or to acquisition of a residence or domicile in some distant State. The fact that she did not de mand payment would not, of itself, justify the court in presuming that she died seme time prior to the,year 1885. When, the time of death is material it cannot rest on presumption, but must be established by proof. (Nepean v. Doe, 2 M. & W. 894.)

Application to vacate order fixing tax denied.

Application denied.