
    In the Matter of the Transfer Tax upon the Estate of Frances L. Bushnell, Deceased. Mary B. Cheney and Dotha B. Hillyer, as Executrices, etc., of Frances L. Bushnell, Deceased, and Emily Cheney Learned, Appellants; The Comptroller of the State of New York, Respondent.
    
      Inheritance tax — the interest in remainder in stock of a New York corporation left by the will of a non-resident testatrix having possession thereof at the time of her death, is taxable.
    
    Where a resident of the State of Connecticut dies in that State, leaving a will, which was there admitted to probate, providing, “ (1) I give to my mother, Mary A. Bushnell, the use for her life of all my property, with power to reinvest the same. (2) After her use of my property shall have ceased, I leave it all, excepting my personal effects, to my niece. Emily Cheney, * * * to be hers and her heirs forever,” the interest of Emily Cheney in capital stock of a New York corporation, which was in the possession of the testatrix in the State of Connecticut at the time of her death, is subject to a transfer tax in the State of New York, even though the life estate has not yet terminated and the stock is not within the State of New York The imposition of the tax may not be resisted by the party entitled to the estate in remainder on the ground that she may never come into possession of the property, or by the life tenant upon the ground that the corpus of the property will he diminished by the tax.
    McLaughlin, J., dissented.
    ■ Appeal by Mary B. Cheney and Dotha B. Hillyer, as executrices, etc., of Frances L. Bushnell, deceased, and another, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 14th day of March, 1902, determining the cash value of the interest of Emily Cheney Learned as a beneficiary under the last will and testament of Frances L. Bushnell, deceased, and assessing the tax thereon.
    
      E. 3. Benn, for the appellants.
    
      Samuel Herman, for the respondent.
   Laughlin, J.:

The property upon which the tax has been imposed consists of eighty shares of the stock of the National Bank of Commerce in the city of New York, and fifty shares of stock of the Delaware and Hhdson Canal Company. The material provisions of the will are as follows: “ (1) I give to my mother, Mary A. Bushnell, the use for her life of all my property, with power to reinvest the same. (2) After her use of my property shall have ceased, I leave it all excepting my personal effects, to my niece, Emily Cheney * * * to be hers and her heirs forever.”

The mother of the testatrix is still alive, and the niece, Emily Cheney, now Emily Cheney Learned, has not yet come into possession of the property. The testatrix resided and died in Connecticut, and her will was there admitted to probate. The executrices both reside there also, and the certificates of stock were in the possession of the testatrix without the State at the time of her death.

The appellants ask for a reversal of the order upon the ground that there is no proof that the Delaware and Hudson Canal Company is a domestic corporation. They do not contend that it is not a domestic corporation, but merely that the People failed to show the fact. The main contentions of the appellants here are that the beneficiary against whose interest the tax has been imposed has no "vested interest in the property, and may never have, for the reason that the corpus may be used or lost by the life tenant, and that the property is not within this State. This objection does not appear to have been taken before the appraiser or the surrogate, and we think it is fair, therefore, to infer that it was assumed upon the hearing before the appraiser and before the surrogate that the corporation was organized under the laws of the State of New York, and that the objections filed by the appellants against the pro forma order of the surrogate, from which they took an appeal to him, to the effect that he had no jurisdiction over the appellants or property, relate to the main questions which are urged upon this appeal, and not to the fact that it was not shown that this was a domestic corporation. It is too late to take the objection in this court.

For these reasons we think the appellants are not in a position to avail themselves of that objection now, but if there were any question about the fact they would be afforded relief by reversal or otherwise.

It is settled by authority that the capital stock of a domestic •corporation is subject to taxation in this State under the Transfer Tax Law (Laws of 1896, chap. 908, art. 10, as amd.) even though the owner be a non-resident and the stock be in his possession without the State at the time of his death. , (Matter of Bronson, 150 N. Y. 1; Matter of Fitch, 160 id. 87.)

Ordinarily a life estate in personalty (not specifically bequeathed) does not entitle the life tenant, as a matter of right, to the possession, and the executors must exercise ordinary prudence in determining whether they will turn over the corpus upon a mere receipt acknowledging the interest of the remainderman or whether they will require security or retain the fund and pay over the income. (Redf. Law & Pr. Surr. Ct. [5th ed.] 618, 619; Matter of McDougall, 141 N. Y. 21; Matter of Talmage, 32 App. Div. 10; affd., 160 N. Y. 704; Matter of Ungrich, 48 App. Div. 594; affd., 166 N. Y. 618; Matter of Roffo, 51 App. Div. 35.) It may be that the life tenant in this case is entitled to the possession of the stock or the proceeds thereof inasmuch as she is authorized to invest or reinvest the same, but she would not be authorized to use any part of the corpus of the estate. (Matter of McDougall, supra ; Matter of Roffo, supra; Matter of Ungrich, supra; Matter of Talmage, supra.) But. whether the life tenant would be entitled to the possession of the property or not there is no presumption that she will unlawfully use or waste the corpus of the estate which it is her duty to preserve for the benefit of the remainderman. If she be entitled to possession and the nature of the property or the circumstances or her financial condition are such as to render it proper that she should give security that she will preserve the principal, the surrogate is authorized to require such security before the executors would be required to turn the property over to her. (Matter of Roffo, supra ; Matter of Ungrich, supra.)

Emily Cheney Learned took a vested indefeasible interest in this-property at the time of the death of the testatrix. There has, therefore, been a transfer to her within the contemplation of the Transfer Tax Law and the interest thus transferred was then taxable. (Matter.of Dows, 167 N. Y. 227.)

Both the life tenant and remainderman took their respective interests in the property as a matter of sovereign favor. Neither is the life tenant in a position to complain that the principal of which she is entitled to the use is diminished by the tax nor can the remainderman resist the imposition of the tax upon the ground that he may never come into possession of the property. The law affords remedies to protect the rights of remaindermen. The theory of the statute is that the tax is to be paid by the executors out of the property transferred (Transfer Tax Law, §§ 222, 224), and the. statute would not be construed as making the transferee liable personally beyond the amount of the property coming into his hands.

It follows that the order should be affirmed, with ten dollars costs- and disbursements.

Patterson, Ingraham and Hatch, JJ., concurred ; McLaughlin* J., dissented.

Order affirmed, with ten dollars costs and disbursements.  