
    Matter of the Transfer Tax upon the Estate of James Chappell, Deceased.
    (Surrogate’s Court, Kings County,
    January, 1914.)
    Taxes — transfer tax — finding as to value in original transfer tax proceeding pot conclusive on remaindermen — adjustment of tax on transfer of life estate.
    As soon as it appears that the interest of remaindermen in an estate is contingent, there remains no question- between them and the state to which the then existing value of the residuary estate is essential; and a finding as to said value in the original transfer tax proceeding is not conclusive upon the remaindermen.
    
      Where a life tenant died June 12, 1912, and, in an order made in 1900 by which a tax was adjusted upon the transfer' of the life estate, the value of the estate involved was stated as $13,445.43, and it is conceded that the true value was $2,000 less, the tax now to be fixed on the transfer in remainder must be calculated on $11,330.28, and for practical convenience June 2, 1912, declared the date of the accrual of the tax.
    Motion by the comptroller of the state of New York to fix a transfer tax upon the transfer of contingent remainders which have vested in possession upon the death of the intermediate tenant.
    Thomas E. Rush, (Joseph F. McCloy, of counsel), for State Comptroller.
    Edward G. Nelson, for Martha McGraw, administratrix with will annexed.
    John E. O’Brien, for Henrietta Chappell, administratrix with will annexed.
   Ketcham, S.

The comptroller moves that a transfer tax be fixed upon the transfer of contingent remainder interests which have vested in possession upon the death of the intermediate tenant and that the date of the accrual of such tax be declared.

The life tenant died on June 12, 1912. In the order made in 1900, by which the tax was adjusted upon the transfer of the life estate, the value of the estate involved was stated at $13,445.43. It is conceded that this value was erroneous and that the true value was $11,445.43.

But the comptroller insists that he is entitled to avail himself of this wrong determination as against the remaindermen as an adjudication and that the tax now to be fixed must, therefore, be calculated upon a confessedly fictitious amount.

There was no finding reached in the original tax proceeding which was conclusive upon the remainder-men. As soon as it was found that their interest was' contingent, there remained no question between them and the state to which the then existing value of the residuary estate was essential. All that ever arose in that proceeding which then concerned the remainder-men was the issue as to whether their interests were vested or contingent, and an adjudication not material to that issue could not bind them.

The present value of the transfer in remainder is $11,330.28, and the date of the accrual of the tax is declared for practical convenience to be the 2d day of June, 1912.

Decreed accordingly.  