
    Matter of the Transfer Tax upon the Estate of Cordelia P. Thomas, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      October, 1902.)
    Transfer Tax—A Power of Appointment Given a Domestic Testatrix by a Foreign Will Over Foreign Property and Exercised by Her Under Foreign Law Is Not Taxable.
    Where a non-resident testator, whose property was and remained wholly in the State of his domicile, after creating by his will, in trustees resident there, a trust for his daughter for life, gave her power to appoint the remainder after the trust, the surrogate considered that the exercise by her, at her death a resident of the State of New York, of this power by a will executed and proved here, did not, under L. 1896, ch. 908, § 220, subd. 5, as amended in 1897, subject the shares of her appointees to the transfer tax, and this because the property had been wholly without this jurisdiction, the laws of the foreign State had controlled the whole matter, there had been no transfer under our laws and none whatever beyond the fact shown < that the foreign trustees, when so ordered by the foreign court acting under the daughter’s will which had been probated therein and followed thereby, paid her appointees their shares.
    Appeal from an order fixing and assessing the transfer tax.
    Oudin & Oakley, for appellant; Edward H. Fallows, for State Comptroller.
   Thomas, S.

By the will of Edwin L. Parker, the father of ■the decedent and a resident of Baltimore county, in the State of Maryland, made and proved in Maryland in 1868, he devised ■and bequeathed one-half of his residuary estate to three trustees, then and at all times thereafter residents of the State of Maryland, upon a trust to keep the same invested and pay the income to the decedent during her life, and after her death to “ pay or transfer the same in such manner as she, hy her last will and testament, whether married or unmarried, may direct, and in default of such last will and. testament to such person or persons as, by the laws of Maryland, may be entitled to the same as her heirs.” The decedent manned, and died on January 17, 1902, being then a resident of the county of Mew York. She left a will by which she appointed six legacies of $1,000 each to be paid out of her father’s estate to nephews and nieces, and all of the balance of her individual estate and of the interest in her father’s estate, subject to her power of appointment, she gave and appointed to her husband. This will was admitted to probate here, and was subsequently treated by the Circuit Court of Baltimore city as a valid execution of the power of appointment contained in her father’s will, by the making of a decree that the trustees under the will of her father pay over the fund in their hand-s to her appointees. This decree was carried out, and under it assets appraised as being of the value of $76,018.19 were transferred. All of the assets were from the time of the death of the father in the State of Maryland, and remained in that State until delivered by the trustees under this final decree. The individual property of the decedent was of the value of $6,176.23, and passed to her husband. The appraiser appointed in a proceeding to assess the transfer tax included in his appraisal the amount of the fund passing from the trustees of the father’s estate, and an order was made confirming his report and fixing the tax accordingly. The executor of the will of the decedent and all the persons charged with the tax now appeal from that order.

The provision of law under which the appraiser acted is subdivision 5, section 220 of article X of the Tax Law, as amended' by chapter 284 of the Laws of 1897, which is as follows: “ Whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this act, such appointment, when made, shall be deemed a taxable transfer under the provisions of this act in the same manner as though the property to which such' appointment relates belonged absolutely to the donee of such power, and had been bequeathed or devised by such donee by will.” The will of Mr. Parker is certainly included in the phrase “ any disposition of property,” and the power of appointment was derived from it. A strictly literal construction of the statute would require the imposition of the tax, but I cannot think that the Legislature intended such a result, as applied to the facts of the present case, and I am of opinion that, if it did, the statute cannot be enforced. In all of the eases it is quite clearly asserted that the tax is one, not upon property, but upon transfers of property made by will or descent, where the right to make or receive such transfers is accorded by the laws of this State, and which right the sovereign power of this State may lawfully abridge by the amount of the tax. It was upon this ground that the provision of law now under consideration was determined to be constitutional. Matter of Vanderbilt, 50 App. Div. 246, 252; affd., 163 N. Y. 597; Matter of Dows, 167 id. 231. .

In the present case no transfer of any kind of any part of the assets of the estate of Edwin L. Parker, in the hands of his trustees at the time of the death of his daughter, has been effected or permitted by any law of the State of Hew York. All of those assets were in the State of Maryland, held by trustees residing in Maryland, under a will of a citizen of Maryland, pursuant to the laws of that State. It is true that the will of the decedent which effected the appointment was executed here, hut it derived’ none of its force or validity from our law. Its legal effect depended entirely upon the law of Maryland, and if its probate in this S'tate was necessary or useful for any purpose, it was only because the law of the State of Maryland so declared. Blount v. Walker, 28 S. C. 545; Olivet v. Whitworth, 82 Md. 258; Betts v. Betts, 4 Abb. N. C. 317, 388, 389. The power to impose conditions or to affix a tax upon the transfers effected by the power of appointment and its due execution rested exclusively with the State of Maryland, since that State accorded every right asserted by the parties. The property which belonged to the decedent and which passed as hers, under our laws, was less than $10,000; it was bequeathed-to her husband, and the transfer is exempt from tax.

The appeal is sustained.

Appeal sustained. .  