In re the Transfer Tax Upon the Estate of Rothschild

7 Mills Surr. 204, 63 Misc. 615, 118 N.Y.S. 654

• Court: New York Surrogate's Court
• Decided: June 15, 1909
• Status: Published

Opinion

Ketcham, S.

Ho ground appears upon which the appraiser’s estimate of the value of the real estate can he disturbed.

The specific charge of the legacies upon such real estate, together with the express power to make deeds to carry into effect the provisions of the will, implies a power of sale.

The sale, if made, will be an act of • administration, and the necessity for the sale is clear. Hence, as to the lands devised, the only interest which passes by the will, when the devise is subject to a power which is sure to be exercised, is the right to receive so much of the proceeds of sale as shall remain after the payment of legacies, debts and expenses incident to the sale.

If commissions are to be paid to a broker for procuring a purchaser, then, unless there is a corresponding deduction, the tax will be levied upon a sum which by the will cannot reach the beneficiary. Such commissions are a proper expense, and the executrix swears, without contradiction, but in somewhat uncertain language, that in this ease the commissions will be included in the expenses of the sale necessarily to be paid.

The proceedings should be remitted to the appraiser to take such further proof as may be offered, and upon the whole case to allow the amount of broker’s commissions upon the sale, if upon all the proofs it shall appear that they are actually to be paid.

Proceeding remitted to appraiser.