
    Matter of the Estate of John H. Browning, Deceased.
    (Surrogate’s Court, New York County,
    May, 1916.)
    Wills — power of sale not exercised — when widow entitled in transfer tax proceeding to' have value of dower deducted from appraised value of real estate.
    Executors and administrators — when not entitled to commissions — taxable assets.
    Where the personal property of a testator is ample to set up a trust fund for the benefit of his son, his widow, to whom was devised all of testator’s real estate subject to the executors’ power of sale which has not been exercised, is entitled in a transfer tax proceeding to have the value of her dower deducted from the appraised value of the real estate, testator indicating no intention to deprive her of dower.
    The executors are not entitled to commissions unless they exercise the power of sale and such commissions should not be deducted from the taxable assets of the estate at this time.
    Appeal from an order assessing and fixing the transfer tax.
    Deyo & Bauerdorf (Joseph F. McCloy, of counsel), for appellant.
    Aron L. Squiers, for state comptroller.
   Fowler, S.

The executrix of decedent’s estate has taken this appeal from the order entered upon the appraiser’s report and contends that the appraiser erred in refusing to deduct the value of the widow’s dower from the real estate of which the decedent died seized. The appraiser found that the value of decedent’s real estate in this state was $233,375.

The decedent gave to his executors the sum of $300,000 in trust to pay the income to his son during his life; all the rest of his estate he gave to his wife. The personal property is sufficient to set up the trust fund for the benefit of decedent’s son. As the real estate, therefore, is not given to trustees, but to the widow absolutely, and the will contains no provision which would indicate that the decedent intended to deprive his wife of her dower, she is entitled to have the value of her dower deducted from the value of the real estate devised by the will of the decedent. Lewis v. Smith, 9 N. Y. 502; Konvalinka v. Schlegel, 104 id. 129;, Hortsmann v. Flege, 172 id. 384; Matter of Weiler, 122 N. Y. Supp. 608; affd., 139 App. Div. 905.

The executors also contend that the appraiser erred in refusing to deduct from the assets of the estate the executors ’ commissions on decedent’s real estate. The decedent gave his executors power to sell his real estate, but this power was not imperative; the real estate was devised to decedent’s wife subject to the executors’ power of sale. The power has not yet been exercised, and the payment of legacies or the administration of the estate does not render it necessary that the power should be exercised. At the present time the executors are not entitled to commissions, nor will they be entitled to such commissions unless they exercise the power of sale; therefore such commissions should not be deducted from the taxable assets of the estate at this time. If the executors should sell the real estate they may apply to this court for a modification of the order fixing tax, so as to provide for the deduction of their commissions upon the real estate actually sold by them.

The appraiser erred in refusing to deduct from the New York assets the debts and administration expenses in this state. Matter of King, 71 App. Div. 581; Matter of Grosvenor, 124 id. 331.

The order fixing tax will be reversed and the appraiser’s report remitted to him for correction, as indicated.

Order reversed.  