
    Matter of the Estate of Caroline Heilbuth, Deceased.
    (Surrogate’s Court, New York County,
    April, 1914.)
    Wills — devise in trust to pay widow and children certain sum annually— termination of trust — what property subject to transfer tax — domicile.
    By the -will of a testator who gave his estate in trust to pay his widow a certain sum annually, and to pay a certain part of the income to his two daughters until they were twenty-one years of age, the trustee was directed to divide the residue of the estate between the daughters upon attaining their majority subject to the payment of an annuity to their mother during her life. When said daughters became of age one of them, decedent herein, then domiciled in France where she died, and her mother executed an instrument terminating the trust in favor of the mother in so.far as it affected one-half of the estate of testator, and assigning said one-half of the estate to the mother and another as trustees with direction to collect the income and therefrom pay the widow an annuity for life, the balance of said income to be paid to decedent herein and upon the death of testator’s widow to pay the principal of the trust fund to decedent herein if living, and in ease of her prior death to her issue. The decedent herein predeceased her mother. It did not appear that the securities constituting the estate of testator were kept in the state of New York by the testamentary trustee who was a resident of the state of New Jersey, or that they were in the state of New York when decedent herein executed the deed of trust, but it was conceded that said securities were kept in the state of New York by the trustee appointed under the deed of trust. Held, that the property transferred by the deed of trust was not subject to a transfer tax.
    .That the interest of decedent herein in said securities consisted of a right to compel the trustee to pay her one-half of what remained after he had set apart a sum sufficient to pay her mother as provided by testator’s will; that not having enforced such right she never acquired title to the property.
    ■ Appeal by a surviving trustee of a trust fund from an order affixing and assessing the transfer tax.
    Satterlee, Canfield & Stone, for trustee, appellant.
    George M. Gumming, for Edward H. Heilbuth, as ancillary guardian, appellant.
    John S. Jenkins (Henry A. Miller, of counsel), for State Comptroller, respondent.
   Fowler, S.

This is an appeal by the surviving trustee of a trust fund created on the 23d day of October, 1896, by the decedent and her mother Mary E. Baynolds. John Baynolds, a resident of New Jersey, died in 1892, leaving a widow, Mary E. Baynolds, and two daughters, one of whom, Caroline Heilbuth, is the decedent herein. By his will he gave his estate to his executrix in trust to pay his wife the sum of $3,000 per annum, and to pay a certain part of the income to his daughters until they arrived at the age of twenty-one years. He further directed his trustee to divide the residue of his estate between his daughters when they arrived at the age of twenty-one years; but this bequest was subject to the legacy of an annuity of $3,000, which he directed to be paid to his wife during her life. When the two daughters had-reached the age of twenty-one years, Mary E. Baynolds, as trustee of the estate of John Baynolds, and Caroline Heilbuth, one of the daughters, executed an instrument by which they declared that they had terminated the trust in favor of the widow in so far as it affected one-half of the estate of John Baynolds, and in lieu thereof the parties to the said instrument transferred and assigned to Mary E. Baynolds and George F. Caulfield, as trustees, all of the said one-half part of the estate of said John Baynolds, deceased.” The trustees were directed to collect the income from the said one-half of the estate of John Baynolds, and out of said income to pay Mary E. Baynolds the sum of $1,500 annually during her life, the balance of the income to be paid to Caroline Heilbuth, and upon the death of Mary E. Baynolds to transfer and pay over the principal of the trust fund to Caroline Heilbuth, if she were then living, and in case of her death prior to that time to pay it to her issue. Caroline Heilbuth, the decedent herein, died on the 10th day of November, 1898. Mary E. Baynolds died on the 16th of August, 1912. The appraiser appointed by this court to appraise the value of the estate of Caroline Heilbuth for the purpose of the transfer tax reported that the estate of John Baynolds consisted of bonds and mortgages of the value of $103,970.35,. and that one-half thereof, less certain deductions amounting to $4,434.85, was subject to taxation as a transfer of the property of Caroline Heilbuth under the deed of trust executed by her on the 23d of October, 1896. The. decedent, at the time she executed the deed of trust, had her domicile in France, and she was domiciled there at the time of her death. There is no proof that the bonds and mortgages constituting the estate of John Raynolds, deceased, were kept by his trustee in the state of New York, or that they were located in this state at the time the .trust deed was executed by the decedent, but it is conceded that the bonds and mortgages were kept in this state by the trustee appointed under the deed of trust. Even if the title to the bonds were in the decedent, they would not be subject to a tax unless they were located in this state at the date the deed was executed, because at that time she was not a resident of this state. The decedent was not entitled to possession of any part of the corpus .of the trust fund created under the will of her father until she arrived at the age of twenty-one years. Upon attaining that age she became entitled to possession of one-half of what remained after an amount necessary to produce an income, of $3,000 a year for her mother, Mary E. Raynolds, had been retained by the trustee. No distribution of the trust fund was made by the trustee when the decedent arrived at the age of twenty-one; but the deed of trust above referred to was then executed by..the decedent and her mother. The title to the bonds and mortgages constituting the corpus of the trust fund was in the trustee appointed under the will of John Raynolds until the trust was terminated by the execution of the deed of trust on the 23d of October, 1896, at which time the title to one-half of the estate of John Raynolds -was vested in the trustee appointed by that instrument. Therefore, the decedent herein did not have title to any of the bonds and mortgages mentioned in the appraiser’s report at any time prior to her death. She was not entitled to the possession of any particular bond, nor was she the owner of any particular piece of property held by the trustee. Her interest in the bonds and mortgages at the time she executed the deed of trust on October 23, 1896, consisted of a right to compel the trustee to pay her one-half of what remained after the trustee had set apart a sum sufficient to pay Mary E. Raynolds an income of $3,000 per annum. But this right was not enforced by her, so that she never acquired title to the property. Her interest in the estate, therefore, at the time of the execution of the deed of trust was an equitable chose in action, and as she was domiciled in France at that time, and the trustee under the will of John Raynolds was a resident of New Jersey, the state of New York had no jurisdiction to impose a transfer tax upon the property transferred by the deed of trust executed by the decedent on the 23d day of October, 1896. Matter of Phipps, 77 Hun, 325 ; affd., 143 N. Y. 641 ; Matter of Zefita, 167 id. 280. The order fixing tax will therefore be reversed and the property passing to decedent’s issue by virtue of the deed of trust executed on October 23,1896, be declared exempt from taxation.

Order reversed.  