
    In the Matter of the Transfer Tax upon the Estate of Maurice Seligmann, Deceased. Elias Asiel et al., as Trustees, Appellants; The Comptroller of the State of New York, Respondent.
    Transfer tax — contingent or defeasible estate in expectancy — when tax should be upon full value.
    Where transfer taxation has been held in abeyance, the contingent or defeasible estate in expectancy is to be appraised at its full value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof. (Tax Law [Cons. Laws, ch. 60], § 330; Matter of Terry, 318 N. Y. 318, 333, explained.)
    
      Matter of Seligmann, 170 App. Div. 837, affirmed.
    (Argued November 23, 1916;
    decided December 28, 1916.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 18, 1916, which modified and affirmed as modified an order of the New York County Surrogate’s Court assessing a transfer tax upon certain remainder interests which were suspended from taxation in a former tax proceeding and which have since fallen in.
    
      Abraham L. Gutman and Thomas A. S. Beattie for appellants.
    
      Schuyler O. Carlton and Lafayette B. Gleason for respondent.
   Pound, J.

This proceeding was properly disposed of by the Appellate Division (170 App. Div. 837). The extract from the opinion in Matter of Terry (218 N. Y. 218, 223): “In all cases we must carve out of one total — the value of the property transferred as of the death of the decedent — the value of the present and the future interest, and the parts can never be greater than the whole,” which is relied upon by the appellant, must be read in connection with the context. It relates to present taxation where the fair market value of the future interest is ascertained, and does not relate to cases where the future interest cannot be or is not presently-valued and taxed. Where taxation has been held in abeyance, the contingent or defeasible estate in expectancy is to be appraised at its full value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof. (Tax Law [Cons. Laws, ch. 60], § 230.) Thus, in the Terry case, if the legacy to the McGregor Home should revert to the heirs, it would then be appraised and taxed at its full value without any deduction. In such a case, because we cannot presently carve out of one total the value of the present and future estates, the legislature has established the rule of giving both estates the highest possible value, as the persons entitled thereto respectively take possession. In the case at bar, the entire future interests of the sons might, in the first place, have been appraised for taxation and the tax then paid on such valuation, but as payment was postponed the tax should now be upon the full value.

The order should be affirmed, with costs.

Willard Bartlett, Oh. J., Chase, Collin, Cuddeback, Hogan and Cardozo, JJ., concur.

Order affirmed.  