
    Matter of the Appraisal of the Property of Nicholas E. Chesebrough, Deceased.
    (Surrogate’s Court, New York County,
    March, 1901.)
    Transfer tax — Legacy to a corporation not in existence void.
    A legacy of an interest in land, made to a corporation which the decedent upon certain specified contingencies expresses a wish to have incorporated, but which has never been incorporated, cannot be subject to the transfer tax, as no interest can pass to a body corporate which is not in existence.
    Proceedings under the act in relation to taxable transfers of property.
    Appeal from an order made upon the report of the appraiser.
    P. H. Vernon, for appellant.
    Theo. E. Hamilton, for comptroller of Hew York city.
   Thomas, S.

The decedent was a nonresident of this State, and none of his personal assets were located here or are claimed to be subject to taxation under our laws. He owned real property in this State and county, which the appraiser finds to be of the value, over proper deductions, of $11,700, and he recommends a tax at the rate of one per centum on $5,000, the amount of the interest claimed to pass to Amos Sheffield Ohesebrough, a brother of the decedent, and a tax at the rate of five per centum, on $6,700, the value of an interest supposed to be transferred by the will of the decedent to the Ohesebrough Protestant Orphan Asylum of Summit, H. J.” The tax was so fixed by a formal order made on the appraiser’s report, and an appeal from that order is now before me. Amos Sheffield Ohesebrough, the brother, is a legatee under the will of the decedent of a sum of money in excess of $5,000. There are other legacies, and it is hard to perceive on what theory the appraiser concluded that just that amount of his legacy, and no more, is chargeable against the Hew York real estate, and that none of the other legacies are so chargeable in any amount. Assuming him to be right in this, the interest passing, because of this legacy, to a brother is an. interest in land, and is not taxable. Matter of Sutton, 3 App. Div. 208; Matter of Offerman, 25 id. 94. By the will of the decedent, he expressed a wish that, upon certain specified contingencies, a corporation should be created, to be known as the “ Ohesebrough Protestant Orphan Asylum,” which should receive an interest in his estate. No such corporation has ever been created, and no interest can pass 'to a body corporate which has no existence. The order fixing the tax is, therefore, in all respects reversed and annulled. One of the official appraisers will be designated to make a new appraisal.

Order reversed.  