
    (34 Misc. Rep. 365.)
    In re CHESEBROUGH’S ESTATE.
    (Surrogate’s Court, New York County.
    March, 1901.)
    Transfer Tax.
    Where testator devised certain land to a corporation to be created o» certain specified contingencies, but which has ■ in fact never been created, the legacy cannot be subject to the transfer tax.
    Appeal from report on an order of appraisers.
    In the matter of the appraisal of the property of Nicholas E. Chesebrough, deceased, under the act in relation to taxable transfers of property. From an order made on the report of the appraisers, the executor appeals.
    Reversed.
    P. H. Vernon, for appellant.
    Theo. F. Hamilton, for comptroller of New York City.
   THOMAS, S.

The decedent, was a nonresident of this state, and none of his personal assets were located here or are claimed to be subject to taxation under our laws. He owned real property in this state and county, which the appraiser finds to be of the value, over proper deductions, of $11,700, and he recommends a tax at the rate of 1 per centum on $5,000, the amount of the interest claimed to pass to Amos Sheffield Ghesebrough, a brother of the decedent, and a tax at the rate of 5 per centum on $6,700, the valúe of an interest supposed to be transferred by the will of the decedent to the “Chesebrough Protestant Orphan Asylum of Summit, N. J.” The tax was so fixed by a formal order made on the appraiser’s report, and an appeal from that order is now before me. Amos Sheffield Ghesebrough, the brother, is a legatee under the will of the decedent of a sum of money in excess of $5,000. There are other legacies, and it is hard to perceive on what theory the appraiser concluded that just that amount of his legacy, and no more, is chargeable against the New York real estate, and that none of the other legacies are so chargeable in any amount. Assuming him to be right in this, the interest passing, because of this legacy, to a brother, is an interest in land, and is not taxable. In re Sutton’s Estate, 3 App. Div. 208, 38 N. Y. Supp. 277; In re Offerman’s Estate, 25 App. Div. 94, 48 N. Y. Supp. 993. By the will of the decedent, he expressed a wish that, upon certain specified contingencies, a corporation should be created, to be known as the “Ghesebrough Protestant Orphan Asylum,” which should receive an interest in his estate. No such corporation has ever been created, and no interest can pass to a body corporate which has no existence. The order fixing the tax is therefore in all respects reversed and annulled. One of the official appraisers will be designated to make a new appraisal.

Order reversed.  