
    Matter of the Estate of Thomas Curtis Clarke, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      October, 1902.)
    Transfer Tax—When a Remainder is Not Taxable.
    A remainder is not presently subject to the transfer tax where it is limited to children of the life tenant, or her appointees by will, and she is not shown to have any children, as, in such case, no transfer, defeasible or otherwise, of the remainder has yet been made.
    Appeal from the report of an appraiser.
    Edward H. Fallows, for State Comptroller; George E. Mott, for executor.
   Thomas, S.

The interests of the children of the testator, to take effect in possession at the death of his widow, all became vested at the time of his death, and are presently taxable, under rules well settled prior to the recent decision of the Court of Appeals in Matter of Estate of Cornelius Vanderbilt, 172 N. Y. 69. Matter of Vinot, 26 N. Y. St. Repr. 610; Matter of Lange’s Estate, 55 N. Y. Supp. 750. The only interest which may not yet have vested, or which is subject to any contingency, is the remainder interest of the portion set apart for Mrs. Withers after her death, as to which the persons who are to become entitled are to be her issue, not shown to be in existence, or persons appointed by her in her last will. If Mrs. Withers is now without children, this remainder interest is not now taxable, since no transfer, defeasible or otherwise, has yet been made. But if any child of Mrs. Withers is now in existence, such child is now vested, under the rules laid down in the Vanderbilt case, with an estate in such remainder, subject to be divested by his death prior to his mother,, and also subject to open and let in after-born children, and the tax can now be imposed. The appeal is sustained, and the matter will be remitted to the appraiser to determine the values of the remainder interests to take effect in possession on the death of the widow.

Appeal sustained and matter remitted to appraiser.  