
    In the Matter of the Appraisal under the Acts in Relation to Taxable Transfers of Property of William H. Burgess, Deceased. Cora L. Burgess and Others, as Executors, etc., of William H. Burgess, Deceased, Appellants; The Comptroller of the State of New York, Respondent.
    Second Department,
    July 27, 1911.
    Tax — transfer tax — devise under will giving conditional power of appointment.
    Where a testator devised his property in trust, income to his wife for life, or until her remarriage, and provided that on the happening of either of said events the corpus should be divided and held in separate trusts for the lives of such of his daughters as should be living at the túne of the division, and for the issue of deceased daughters per stirpes, giving to each daughter living at the termination of the widow’s estate a power of appointment with respect to her own share in the estate, with a proviso that on the death of a daughter prior to the decease of ■ the mother her share should go absolutely to her issue, the gifts to the beneficiaries are subject to a transfer tax of five per cent.
    This, because there was no power of appointment in the widow or. absolute power of appointment in the daughters, so it was impossible to determine whether the property would go under the will directly to the issue of daughters, or under the provision giving them the conditional power of appointment. ■
    Appeal by Oora L. Burgess and others, as executors, etc., from an order of the Surrogate’sCourt of the county of Nassau, entered in said Surrogate’s Court on the 4th day of May, 1911, confirming an order entered on the 31st day of January, 1911, fixing a transfer tax'upon the estate -of William H. Burgess, deceased. . . -
    
      Albert Stickney [Harold Russell Griffith with him on the brief], for the appellants.
    
      Henry P. Keith, for the respondent.
   Woodward, J.:

The decedent died July 11, 1909. The clause in the will under which this controversy arises provides : “ I give, devise and bequeath all the rest,, residue and remainder1 of my estate, both real and personal, wheresoever and whatsoever the same may be, of which I may die seized 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 fife, or until her re-marriage, and upon her death or re-marriage, 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 arid 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), 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. (Consol. Laws, chap. 60; Laws of 1909, chap. 62), which, so far as applicable, re-enacted section 230 of the former Tax Law (Gen. Laws, chap. 24 [Laws of 1896, chap. 908], as. last amd. by Laws of 1905, chap. 368), as said section was, in this respect, first amended by chapter 76 of the Laws of 1899, as construed and applied in Matter of Vanderbilt (172 N. Y. 69), and the learned surrogate properly refused' to make any change in the original order by which the tax upon the transfer was fixed at five pel* 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.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Order of the Surrogate’s Court of Nassau county affirmed, with costs.  