In re the Transfer Tax on the Estate of Field

2 Mills Surr. 359, 36 Misc. 279, 73 N.Y.S. 512

• Court: New York Surrogate's Court
• Decided: November 15, 1901
• Status: Published

Opinion

Fitzgeeald, S.

— Tbe report of tbe appraiser herein has been 'filed and 'an order is now presented by tbe attorney for tbe executors, fixing tbe tax in accordance with bis findings. By the provisions of bis will tbe testator gave his residuary estate to bis executors in trust to pay tbe net income thereof to bis wife during tbe term of her life. Upon her death, after numerous bequests of specific sums of money, the remainder was bequeathed to a nephew. By a codicil to bis will, after reciting tbe provisions for tbe benefit of bis widow, be gives to bis wife a power to appoint out of tbe remainder tbe sum of $150,000 to any descendant or descendants of testator’s father, in such proportions as she may see fit. In case she shall not exercise this power of appointment, then tbe estate is to be distributed as if tbe codicil bad not been executed. Before tbe ap~ praiser no reference was made do this codicil and the power given thereunder. The appraiser reports the value of the remainder interest in the residuary estate after the death of the wife at the full sum, undiminished by the fund set apart by ■the codicil, and over which the widow is given a power of appointment. Section 220 of the Tax Law provides expressly for the taxation of property passing .by virtue of the exercise of such a power, as well as where it passes by reason of a failure to appoint. The remainder interest over which this power is given must, therefore, be deducted from the share passing to tñe nephew, and the value of his interest calculated with reference to the provisions of the codicil. See Matter of Seaver, 63 App. Div. 284; S. C., 71 N. Y. Supp. 544. An order may be submitted remitting the jmoceeding to the appraiser to report in accordance with this memorandum.

Decreed accordingly.