
    In re BURGESS.
    (Supreme Court, Appellate Division, Second Department.
    July 27, 1911.)
    Taxation (§ 885)—Transfer Taxes—Property Subject to.
    Testator gave property in trust to pay the Income to his widow until her death or remarriage, directing that the property then be divided and held in trust for the lives of his several daughters, with power of appointment to each, of the daughters alive at the widow’s death respecting the principal of her own share, and that, on the death of any daughter before the widow’s death, her share should go absolutely to her issue. Held. that the property is subject to transfer tax under Tax Law (Laws 1896, c. 908) § 230, as amended by Laws 1899, c. 76.
    [Ed. Note.-—For other cases, see Taxation, Cent. Dig. §§ 1706, 1707; Dec. Dig. § 885.]
    Appeal from Surrogate’s Court, Nassau County.
    In the matter of the appraisal under the transfer tax acts of property of William H. Burgess, deceased. From an order confirming an order assessing a tax, Cora L. Burgess and others, executors, appeal.
    Affirmed.
    Argued before JENKS, P. J., and THOMAS, WOODWARD, CARR, and RICH, JJ.
    Albert Stickney (Harold Russell Griffith, on the brief), for appellants.
    Henry P. Keith, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   WOODWARD, J.

The clause in the will under which this controversy arises provides:

“I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wheresoever and whatsoever the same may be, of which I may die seised and possessed, unto my executors hereinafter named, to have and to hold the "same in trust, nevertheless, to and for the following uses and purposes, namely: * * * To pay the net rents, issues and profits so received to my wife, Cora L. Burgess, during the term of her natural life, or until her remarriage, and upon her death or remarriage, whichever event shall first happen, to divide the same * * * into as many shares as I may have daughters living at the time of such division, and then living issue, collectively, of any then deceased daughter, and to set aside one share for the issue collectively of any then deceased daughter, and to pay over the said share to such issue in equal shares, so that each set of issue will receive one share, per stirpes; and to set aside one share for the benefit of each of my said daughters then living, and to have and to hold the same in trust, nevertheless, to and for the following uses and purposes, namely: * * * To pay the net rents, issues and profits so received to the daughter for whose benefit the said share shall be so set aside, during the term of her natural life, and on her death, to pay over the principal so held in trust, together with the sum of fifty thousand dollars also set apart for her benefit as provided by the third clause of this will to such person and in such manner as she may in and by her last will and testament, properly executed by her, duly appoint, or in default of such appointment, either as to the whole or any part thereof, then to the extent to which no appointment shall be made, to her issue her surviving per stirpes, or in default of both such appointment, either as to the whole or any part thereof, and of issue, then to the extent to which no such appointment shall be made, to such persons as would be entitled to receive the same if she had died intestate possessed of the principal of said trust estates.”

If the power of appointment had been given to the testator’s widow, the case would have been within the rule laid down by this court in Matter of Howe, 86 App. Div. 286, 83 N. Y. Supp. 825; but the testator did not give such a power to his widow. He gave it to each of his daughters who should be alive at the time of the death of his widow in respect to her own share of the estate, and, in the event of the death of any daughter prior to the decease of his widow, then the share the daughter would have taken was to be given absolutely to her issue. This brings the case within the provisions of the general rule of section 230 of the tax law (Laws 1896, c. 908), as amended by chapter 76 of the Laws of 1899,, as construed and applied in Matter of Vanderbilt, 172 N. Y. 69, 64 N. E. 782, and the learned surrogate properly refused to make any change in the original order, by which the tax upon the transfer was fixed at 5 per cent. No one was, under the terms of the will, vested with an absolute power of appointment; no one could determine whether the transfer would be made under the provision which gave the property direct to the issue of the daughters, or under the provision giving them a power of appointment. Under such circumstances the provisions of section 230 are clearly applicable, and the beneficiaries under the will will be obliged to take, subject to the tax as fixed in the order.

The order appealed from should be affirmed, with costs. All concur.  