
    In the Matter of the Estate of McCoskry Butt, Deceased.
    Surrogate’s Court, New York County,
    December 20, 1937.
    
      
      Edgar Hirschberg [SoZ Zaretski of counsel], for the State Tax Commission, appellant.
    
      Kobbé, Thatcher, Frederick & Hoar [Joseph F. McCloy and M. Francis Bravman of counsel], for trustee, respondent.
   Delehanty, S.

This is an appeal by the State Tax Commission from the order of July 30, 1937, modifying the pro forma order of August 7,1922, fixing the transfer tax. The ground of appeal is that the modifying order improperly eliminated a tax based on the full life estate of Mae I ranees Butt contained in the original order and inserted therein a tax based on the actual period Mae Frances Butt was the beneficiary of the trust.

The testator died on March 3, 1921, and by the terms of his will Mae Frances Butt, his daughter-in-law, was entitled to receive for her life or until her remarriage the income of one-third of the residuary estate. In the original order of August 7,1922, her life interest in this fund was valued at $213,110 and a tax imposed thereon of $7,405. Mae Frances Butt remarried on January 8, 1935, and, therefore, enjoyed the fund only for a period of approximately thirteen years. The value of her interest in the fund for this period amounts to but $130,017, the tax on which amounts to but $3,950.68. In the modifying order this latter figure was inserted in place of the tax of $7,405 which had been finally fixed in the original order and paid in accordance therewith.

Section 230 of the Tax Law, effective on the date of this decedent’s death, provided: “ Where an estate for life or for years can be divested by the act or omission of the legatee or devisee it shall be taxed as if there were no possibility of such divesting.” Under this provision, it has been held that a life estate which may terminate on the marriage of the life tenant is taxable as a full life estate without diminution on account of the possibility of the remarriage. (Matter of Plum, 37 Misc. 466.) -.

The fixation in the original order of a final tax against Mae Frances Butt based on her full life estate was proper and was improperly modified in the order of July 30, 1937. The appeal is sustained. ¡

Submit, on notice, order modifying the order fixing tax in accordance with this decision.  