
    Matter of the Estate of Mary Bernard, Deceased.
    (Surrogate’s Court, New York County,
    March, 1915.)
    Transfer tax — on savings bank deposit made in i8ig — no presumption that decedent died prior to 1885 — time of death must be established by proof — motion to vacate order made in ign assessing tax denied.
    In 1819 decedent made a deposit of $47 in a savings bank which he never withdrew and upon the application of the public administrator to whom in 1901 letters of administration were issued an inheritance tax of $109.18 was assessed in 1911 upon said deposit and accumulated interest. Held, that an application to vacate the order fixing the tax should not be granted unless it was found as a fact that decedent died prior to 1885 when the first inheritance tax law was passed and that no demand for payment of the deposit was made raised no presumption that decedent died before the year 1885.
    Where the time of death is material it cannot rest on presumption, but must be established by proof.
    Application by the public administrator to vacate an order fixing tax.
    
      Frank W. Arnold, for petitioner.
    Lafayette B. Gleason, for state comptroller.
   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 November, 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of forty-seven dollars in the Bank for Savings in the city of New York in the year .1819, and this deposit was never withdrawn by her.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, when 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 demand payment would not, of itself, justify the court in presuming that she died some 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.  