
    Matter of the Estate of Sarah Buckley Turner, Deceased.
    (Surrogate’s Court, New York County,
    July, 1913.)
    Taxes — transfer tax — when subject to a transfer tax.
    Wills — provisions- in will of nonresident, disposing of real estate in this state, determined — trusts — suspension of power of alienation.
    Property over which a contingent power of appointment may be exercised is presently subject to a transfer tax.
    The validity of a provision in the will of a nonresident disposing of real estate in this state is determined by the laws of this state.
    Where a nonresident testatrix devised her real estate -to trustees with direction to pay the income thereof to her three daughters during their respective lives and upon the death of any of them to pay said income to her issue, if any, otherwise to be paid to her surviving sisters, and upon the death of the daughters without issue the property was to be disposed of by the last will and testament of the daughter last dying, and none of the daughters had issue at the death of testatrix, the trust is void as suspending the power of alienation for more than two lives in being.
    Appeal from an order assessing and affixing the transfer tax.
    Adolph Sonnethal, for state comptroller.
    Whitridge, Butler & Bice, for petitioners.
   Cohalan, S.

The appeal by the executrices from the order assessing a tax upon the decedent’s estate presents for determination the following questions: First, whether the remainders after the life estate of decedent’s children are taxable at five per cent, or one per cent.; second, whether the appraiser erred in his valuation of the decedent’s real estate in this county.

The decedent, who was a resident of Italy, died on the 9th day of August, 1912, leaving real estate situate in this state. Her will was duly admitted to probate in this county. The executrices contend that under the provisions of the will the powers of appointment given to decedent’s children are contingent, and that in the event of the grantees failing to exercise the power the property passes to decedent’s grandchildren, who are beneficiaries of the one per cent, class. The appraiser reported that the remainders are taxable as passing to beneficiaries of the five per cent, class.

If the powers of appointment are contingent the remainders are presently taxable at one per cent. Matter of Burgess, 204 N. Y. 265. If, however, the powers of appointment are absolute, the remainders over which such powers may be exercised are not taxable until such time as the powers have actually been exercised. Matter of Howe, 86 App. Div. 286; affd., 176 ,N. Y. 570. It is therefore necessary for the surrogate to construe the will of the decedent in order to determine whether the powers of appointment are contingent or absolute and whether the remainders are taxable at five per cent, or one per cent. The following are the clauses of the will that are material to the questions under consideration: I appoint as executrices of this my will and as trustees of my real estate in the City of New York my daughters Ellinor and Juliet or the survivor of them, and I hereby give and bequeath to my said daughters and to my daughter Jeanie a life interest in my said real estate. But shall there be issue of the said marriage or marriages, the child or children shall succeed to his, her or their mother’s life interest in her share of my said real estate, which share shall pass to such child or children absolutely and in fee immediately upon the decease of my last surviving daughter in equal shares or in such shares as their mother or mothers, my said daughter or daughters, shall have directed by any deed of appointment or by her or their last will and testament, and shall any of my said daughters decease unmarried, her or their share of my real estate shall pass to her or their sister or sisters during their life or lives, and upon the decease of the last of my daughters the life interest or interests which she may have enjoyed in the said trust estate shall be divided absolutely and in fee between any of the issue of my three daughters, and the same shall succeed per stirpes and not per capita. And shall all of my said three daughters decease leaving no issue surviving, then, and in such event, my said property shall pass absolutely to such person or persons as my last surviving daughter shall appoint by her last will and testament or by any deed of appointment, and failing any such disposition by will or by power of appointment, I hereby give and bequeath the said property absolutely to my next of kin.”

The decedent was survived by her three daughters, Ellinor B. Turner, Juliet Turner and Jeanie Turner Coppinger, aged fifty-four, forty-six and forty-four years, • respectively, at the date of decedent’s death. Ellinor and Juliet were unmarried; Jeanie was married but had no issue.

It is evident that the power of appointment given to the last survivor is contingent upon all the decedent’s children dying without leaving issue them surviving. But an examination of the will suggests the important question as to whether the trust is not invalid as suspending the power of alienation for more than two lives in being. The decedent left no personal property in this state. Therefore her will, in so far as it attempts to dispose of real estate, is to be construed in accordance with the laws of this state. Code Civ. Pro., § 2694; Matter of Majot, 199 N. Y. 29; White v. Howard, 46 id. 144. Section 42 of the Real Property Law provides that ‘ ‘ Every future estate shall be void in its creation, which shall suspend the absolute power of alienation, by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being- at the creation of the estate.” It is not sufficient that the property might under certain contingencies vest so that it would be alienable during the lives of two persons in being at the date of decedent’s death, as the violation of the statute is not cured by the happening of fortuitous circumstances which permit such a vesting of the estate during two lives in being as would prevent an illegal suspension. Morton Trust Co. v. Sands, 122 App. Div. 691. If the condition or limitation is such that it may by any possibility limit the power of alienation to more than two lives in being at the time of the creation of the estate, the grant is inoperative and void. Schettler v. Smith, 41 N. Y. 328; Lee v. Tower, 124 id. 370. Applying these principles to the will under consideration, it appears that as none of the children of the decedent had issue at the time of her death the remainder was not vested and the property could not under these circumstances be aliened until the death of the last of the three daughters, because the will provides that upon the death of the first of the daughters who may die without leaving issue her surviving her share shall be paid to the surviving daughters during their lives. This means that the surviving sisters shall enjoy the share of the income to which their deceased sister was entitled. It does not say that her share of the estate will be paid to the surviving daughters. This direction that the share of the income of a deceased daughter shall be paid to the surviving daughters shows that the intestate intended that the trust estate should remain undivided until the death of the last survivor. Upon the death of the next daughter who may die without leaving issue, her share of the income, together with one-half of her deceased sister’s share, is to be paid to the surviving daughter, but no part of the trust fund would then be alienable by the last survivor, because the will provides that it is only in the event of her dying without issue that she may dispose of the property by power of appointment, and as it cannot be said while she is living that she may not have issue, it is not until her death that the property can be aliened. It therefore appears that in the event of decedent’s three daughters dying without issue them surviving, the power of alienation of decedent’s real estate in this state would be suspended for more than two lives in being at the time of the creation of the estate. The trust is therefore void (Farmers’ Loan & Trust Co. v. Kip, 192 N. Y. 266; Leach v. Godwin, 198 id. 35), and the decedent died intestate as to the real estate situated in this state. As the property descends to decedent’s children its value is presently tax- ■ able at the rate of one per cent.

Upon the hearing before the appraiser real estate experts were examined on behalf of the estate in order to show the value of decedent’s real property in this county. A real estate expert was also examined on behalf of the state comptroller. There was a material difference between their estimates of the value of decedent’s real property. The appraiser adopted the valuation of the state comptroller’s expert. An examination of the testimony shows that this valuation was not unreasonable or unwarranted, and the surrogate, therefore, will not interfere with the finding of the appraiser.

The order fixing tax will be reversed and the appraiser’s report remitted to him for correction as indicated.

Order reversed.  