In re the Estate of Kucielski

5 Mills Surr. 288, 49 Misc. 404, 99 N.Y.S. 828

• Court: New York Surrogate's Court
• Decided: February 15, 1906
• Status: Published

Opinion

Thomas, S.

The question of interest on the legacies is governed by the law of Austria, the place of the decedent’s last domicile. Code Civ. Pro., § 2694; N. Y. Life Ins. & Trust Co. v. Viele, 161 N. Y. 11; Whart. Oonfl. Laws (3d ed.), § 599c. It was shown that, by the law of Austria, interest is not allowed upon pecuniary legacies at the expense of residuary legatees, and that all legacies share pro rata in the entire income and are ■charged pro rata with the administration expenses. The income in this case will barely suffice to pay expenses of administration. Ho interest will, therefore, be allowed upon the legacy to Cooper Hnion.

This court having decided that the said legacy is not liable to transfer tax, the objection of the legatee to the payment of such tax is sustained.. In view, however, of the fact that 'an appeal is pending from that decision, an amount equal to such payment will be reserved from distribution until the determination of the appeal and the decree will so provide.

Matters of procedure here being governed by the law of this State, the ancillary administrator will be 'allowed his costs and ■commissions. Tax costs and settle findings and decree on notice.

Decreed accordingly.