Foley, S.
This appeal is taken by the executor from the order assessing tax upon the following grounds: (1) That the value of the mother’s remainder life interest in a fund of $25,000 should be diminished by deducting therefrom the appraised value of the primary life estate in the fund and that the tax upon the mother’s interest 'should be reduced accordingly; (2) that the assessment of a tax against the trustee on the mother’s remainder life interest in the aforesaid fund of $25,000 is improper, since that remainder interest is an absolute life estate without any trust limitation; (3) that the value of the life estate of the decedent’s sister, Roletta Sperling, in one-half the residuary estate should be diminished by deducting therefrom one-half of the appraised value of the mother’s life estate in the residuary estate, and that the tax assessed against the trustee for the benefit of Roletta Sperling should be reduced accordingly; (4) that the value of the fife estate of the decedent’s sister, Sophie Sperling, in one-half the residuary estate should be diminished by deducting therefrom one-half of the appraised value of the mother’s life estate in the residuary estate, and that the tax assessed against the trustee for the benefit of Sophie Sperling should be reduced accordingly; (5) that the value of the life estate of the sister, Sophie Sperling, in one-half the residuary estate, apparently taxed against her on the theory that she will be the survivor of the two sisters, should be diminished by deducting therefrom one-half the appraised value of the mother’s [836] life estate in the residuary estate, and should be further diminished by deducting therefrom the life interest of the sister, Roletta Sperling, in the same one-half of the residuary estate, and that the tax assessed against the trustee for the benefit of Sophie Sperling should be reduced accordingly; (6) that the value of the remainder interests of the decedent’s three brothers in the fund of $25,000 should be diminished by deducting therefrom the appraised value of the effective primary life estate in the fund, and should be further diminished by deducting therefrom the value of the mother’s remainder life estate in the fund, and that the tax assessed against the trustee for the benefit of the brothers should be reduced accordingly; (7) that the value of the remainder interests of the three brothers in the residuary estate should be diminished by deducting therefrom the appraised value of the effective primary life estate, the value of the life estates of the two sisters and the value of the life estate of their survivor, and that the tax'assessed against the trustee for the benefit of the brothers should be reduced accordingly; (8) that the remainder interests of the three brothers in the fund of $25,000 should have been appraised at a value which would make due allowance for all intervening effective or contingent life interests in the fund, and, if possible of ascertainment at this time, that no tax should be presently assessed thereon; (9) that the remainder interests of the three brothers in the residuary estate should have been appraised at a value which would make due allowance for all intervening effective or contingent life interests in the residuary estate, and, if impossible of ascertainment at this time, that no tax should be presently assessed thereon.
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Foley, S.
This appeal is taken by the executor from the order assessing tax upon the following grounds: (1) That the value of the mother’s remainder life interest in a fund of $25,000 should be diminished by deducting therefrom the appraised value of the primary life estate in the fund and that the tax upon the mother’s interest 'should be reduced accordingly; (2) that the assessment of a tax against the trustee on the mother’s remainder life interest in the aforesaid fund of $25,000 is improper, since that remainder interest is an absolute life estate without any trust limitation; (3) that the value of the life estate of the decedent’s sister, Roletta Sperling, in one-half the residuary estate should be diminished by deducting therefrom one-half of the appraised value of the mother’s life estate in the residuary estate, and that the tax assessed against the trustee for the benefit of Roletta Sperling should be reduced accordingly; (4) that the value of the fife estate of the decedent’s sister, Sophie Sperling, in one-half the residuary estate should be diminished by deducting therefrom one-half of the appraised value of the mother’s life estate in the residuary estate, and that the tax assessed against the trustee for the benefit of Sophie Sperling should be reduced accordingly; (5) that the value of the life estate of the sister, Sophie Sperling, in one-half the residuary estate, apparently taxed against her on the theory that she will be the survivor of the two sisters, should be diminished by deducting therefrom one-half the appraised value of the mother’s [836] life estate in the residuary estate, and should be further diminished by deducting therefrom the life interest of the sister, Roletta Sperling, in the same one-half of the residuary estate, and that the tax assessed against the trustee for the benefit of Sophie Sperling should be reduced accordingly; (6) that the value of the remainder interests of the decedent’s three brothers in the fund of $25,000 should be diminished by deducting therefrom the appraised value of the effective primary life estate in the fund, and should be further diminished by deducting therefrom the value of the mother’s remainder life estate in the fund, and that the tax assessed against the trustee for the benefit of the brothers should be reduced accordingly; (7) that the value of the remainder interests of the three brothers in the residuary estate should be diminished by deducting therefrom the appraised value of the effective primary life estate, the value of the life estates of the two sisters and the value of the life estate of their survivor, and that the tax'assessed against the trustee for the benefit of the brothers should be reduced accordingly; (8) that the remainder interests of the three brothers in the fund of $25,000 should have been appraised at a value which would make due allowance for all intervening effective or contingent life interests in the fund, and, if possible of ascertainment at this time, that no tax should be presently assessed thereon; (9) that the remainder interests of the three brothers in the residuary estate should have been appraised at a value which would make due allowance for all intervening effective or contingent life interests in the residuary estate, and, if impossible of ascertainment at this time, that no tax should be presently assessed thereon.
The decedent died on July 25, 1926. By his will he bequeathed bis entire residuary estate to his mother, Paulina Sperling, for life. The testator further provided that upon the death of his mother the entire residuary estate should pass to his trustee, who is directed to divide the income therefrom into two equal parts, one-half of the income to be paid to the decedent’s sister, Roletta Sperling, during her lifetime and the other half of the income to be paid to the decedent’s sister, Sophie Sperling, during her lifetime, and upon the death of either of the sisters the entire income to be paid to the survivor for the remainder of her life. After the death of both of the sisters, or upon the death of the mother in the event that the sisters predecease her, the corpus of the residuary estate is payable in equal shares to the decedent’.s three brothers, Henry Sperling, Herman I. Sperling and Frederick W. Sperling. By a codicil to his will the testator created a trust fund in the sum of $25,000, the income therefrom to be paid to Fredericka French for life, and upon her death the principal to become part of his residuary [837] estate. The decedent’s sisters and brothers, above mentioned, and Fredericka French survived him. The taxing order, in so far as it applies to the residuary estate, assesses against the testator’s mother, Paulina Sperling, a tax upon the present value of her life estate in the residuary estate. It temporarily assesses against the trustee, for the benefit of persons of the one per cent class, a tax on the value, computed as of the date of appraisal, of the mother’s surviving life estate in the fund of $25,000, in which Fredericka French has the primary life interest. The order also temporarily taxes against the trustee, for the benefit of persons of the two per cent class, the value of the surviving life estates, computed as of the date of appraisal, of the decedent’s sisters, Roletta Sperling and Sophie Sperling, in the respective halves of the residuary estate. Upon the assumption that Sophie Sperling, the younger of the two sisters, will survive Roletta Sperling, the order has temporarily taxed against the trustee, for the benefit of persons of the two per cent class, a second surviving life estate in one-half of the residuary estate. The full undiminished value of the residuary estate, including the fund of $25,000, has been temporarily taxed in three equal shares against the trustee for the benefit of persons in the two per cent class, namely, the respective brothers of the decedent. The first ground of appeal is overruled. At the request of the State Tax Commission, sections 230 and 241 of the Tax Law were amended by chapter 144 of the Laws of 1925. The plain purpose of the State in this legislation is to obtain the immediate deposit of funds adequate for the payment of the highest possible tax that may be ultimately assessed upon any contingent transfer, whether life estate or remainder, when the value of the transfer is finally established. This amendment is applicable to the transfers under the will of this decedent. In Matter of Hosford (129 Misc. 825) I analyzed these statutory requirements for the taxation of contingent surviving life estates and the method of valuation to be adopted by the appraiser. In that decision I pointed out that each transfer must be treated separately and that each contingent surviving life estate must be separately, independently and temporarily taxed by assuming the happening of the contingency which will produce the highest tax to the State. That method has been adopted by the appraiser in the instant case, and the mother’s contingent surviving life estate in the fund in which Fredericka French has a primary life estate has been temporarily valued on her expectancy of life, computed as of the date of appraisal. The report of the appraiser sets forth the proper temporary valuation of this contingent surviving life estate, and the temporary tax thereon has been prtiperly [838] assessed by the taxing order. A similar determination as to the legality of this method of taxation of a surviving life estate was made by my colleague, Surrogate O’Brien, in Matter of Potter (130 Misc. 312), which was modified and affirmed by the Appellate Division of the First Department (222 App. Div. 804). The contention of the executor that chapter 144 of the Laws of 1925 is unconstitutional is overruled. (Matter of Hecht, 219 App. Div. 656; affd., 246 N. Y. 602;