
    In the Matter of the Appeal from an Assessment of Taxes upon the Legatee under the Will of William Cager, by the Surrogate of Cayuga County.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Collateral inheritance tax—$500 limit refers to value of an ESTATE GIVEN TO AN INDIVIDUAL.
    Laws of 1885, chap. 488, § 1, which provides for the imposition of a tax upon devises, to collateral relatives and strangers, when the value of the estate exceeds the sum of f500, provides for a tax upon the individual, and can be imposed only when the particular interest devised exceeds in. value the amount of the limitation provided by the statute.
    2. Will—Construction of.
    The testator, by his will provides.- •• First, after all of my lawful debts-are paid and discharged, I give, devise and bequeath all my estate, both real and personal of whatsoever nature and kind, to my wife, Mary Cager, to be used and enjoyed at her disposal during the term of her natural life. Second, I give and devise one-third of my real estate and personal property that may remain at the decease of my wife, Mary Cager, to my adopted daughter, Mary Griffin, that is to say, the use of said one-third during her natural life. Third. I further devise and bequeath, at the decease of my wife, Mary Cager, the remaining two-thirds of the real estate and personal property to the present heirs of the aforesaid Mary Griffin, viz, * * * share and share alike. I further devise and bequeath that, at the decease of my adopted daughter, Mary Griffin, the one-third as above stated, of which she has had the use, shall be divided between the present heirs of the aforesaid Mary Griffin, share and share alike Held, that the widow took a life estate in the property devised with a limited power of disposition, for her use and enjoyment, and that any interest in the other legatees was dependent upon the contingency whether the power of disposition was exercised by the life tenant during her life.
    3. Same—Executory devise.
    The power of disposition given to the widow in sa^id will was not absolute and unconditional, but was limited for her use and enjoyment during her life, and did not give her the power of disposing of it by will. The devises to Mary Griffin and her children were not, in any sense, repugnant to the prior estate, and can be sustained as valid executory devises. The estate in the widow was not an estate in -fee.
    
      4. Collateral inheritance tax—When it cannot be assessed.
    When the present v^lue of property which is devised to one with a limitation over to others, upon the happening of some event which may or may not occur, can be ascertained, there is a ground upon which an. approximate estimate of the value of the ultimate devise appears, and it may be made; but when the question as to whether any property at all shall pass under the limitation over, and if so, how much, depends upon the will of the first taker, the value cannot be determined, and in the latter case there is no basis for the imposition of any tax under the collateral inheritance tax law, and the provision for giving the conditional bond therein contained is wholly inapplicable.
    Ant appeal from a judgment of the supreme court, general term, fifth department, reversing an order of the surrogate’s court of Cayuga- county, affirming the assessment of a tax.
    
      Charles F. Tabor, attorney-general, for app’lt; A. P.. Rich, for resp’ts.
    
      
       Affirming 13 N. Y. State Rep., 45.
    
   Ruger, Ch. J.

While we concur in the reversal by the' general term of the decree of the surrogate, imposing taxes upon the interest devised to some of the legatees by the will of William Cager, we do not approve of the reasons-assigned therefor by that court.

So far as a tax was levied upon the life estate attempted to be devised to Mary Griffin, its value as assessed by the appraiser being less than $500, it was taken from the cate, gory of devises subject to taxation by the law under which. the proceeding was instituted. Sec. 1, chap. 483, Laws of 1885.

That act was intended to authorize the imposition of taxes upon devises to collateral relatives and strangers only when the estate devised to them individually exceeded in value the sum of $500. The tax is upon the individual, and can be imposed only when the particular interest devised exceeds in value the amount of the limitation provided by the statute.

So, too, the question in this case is not affected by the amendment made to the law of 1885, by chapter 713 of the Laws of 1887, exempting legacies to adopted children from the operation of the law, as the tax in this case was adjudicated and imposed by the surrogate April 26, 1887, and before the amendment took effect.

We are thus brought to the only question in the case, which is whether the children of Mary Griffin took such an interest in the property devised by* the will of William Cager as subjected them to the payment of a tax thereon by force of the acts referred to ? This question is to be determined by a consideration of the provisions of that will. The portions affecting the question involved read as follows:

First. After all my lawful debts are paid and discharged, I give, devise and bequeath all my estate, both real and personal, of what nature and kind soever to my wife, Mary Cager, to be used and enjoyed, and at her disposal during the term of her natural life.

Secondly. I give and devise one-third of my real estate and personal property that may remain at the decease of my wife, Mary Cager, to my adopted daughter Mary Griffin, that is to say the use of said one-third during her natural life.

Thirdly. I further devise and bequeath at the decease of my wife, Mary Cager, the remaining two-thirds of the real estate and personal property to the present heirs of the aforesaid Mary Griffin, namely, Eva Griffin, William C. Griffin, Frank Griffin and George Griffin, share and share alike.

I further devise and bequeath, that at the decease of my adopted daughter, Mary Griffin, the one-third (as above-stated), of which she has had the use, shall be divided between the present heirs of aforesaid Mary Griffin, share and share alike.

The report of the appraiser appointed by the surrogate to appraise the value of the property devised to the various legatees shows that he assessed the value of the estate devised respectively to the children of Mary Griffin, upon two theories, leaving the question to the surrogate to determine upon which theory the tax, if any, should he assessed. Upon the theory that the widow took a life estate only in the property, he found the value of that devised to the several children of Mary Griffin to be the sum of- $640.96 each; but in case the interest devised to the widow was an estate in fee or a life estate with power of disposition, he was of opinion that such legacies had no market value whatever.

The surrogate adopted the former view and assessed the value at the sum named by the appraiser. In this we think he erred. We are of the opinion that the widow took a life estate in the property devised with a limited power of disposition for her use and enjoyment, and that any interest in the other legatees was dependent upon the contingency whether the power of disposition was exercised by the life tenant during her life. The meaning and effect of the will must be sought in the language employed by the testator and when that is discovered, must be carried into effect by the court.

The language giving all of his estate to his widow to be used and enjoyed and at her disposal, followed as it is by a limitation over of such of the estate as might remain at the decease of his wife, clearly imports an intention to confer upon the widow the power to dispose of the corpus of the estate. Van Horne v. Campbell, 100 N. Y., 287; Smith v. Van Ostrand, 64 id., 278; Terry v. Wiggins, 47 id., 512.

We think, however, that the power of disposition given to the widow was not intended to be absolute and unconditional; but was limited by the language devising the property for her use and enjoyment during her life, and did not give her the power of disposing of it by will. This limitation, therefore, operated as a restraint upon the power of •alienation and prevented the estate devised to her from being defined as an estate in fee.

The devises, therefore, to Mary Griffin and her children, were not, in any sense, repugnant to the prior estate, and may be sustained as valid executory devises. Authorities (supra).

The effect of these conclusions is to destroy the basis upon which the surrogate proceeded in imposing the tax in question, and justified the reversal of his order. While it is possible that the legatees may eventually take a valuable estate under the will of William Oager, that event, being contingent upon the non-exercise by his widow of the power of disposition given to her, renders the present appraisable value of such interest incapable of any correct or reasonably approximate valuation. When the present value of property, which is devised to one with a limitation over to others upon the happening of some event which may or may not occur, can be ascertained, then a ground upon which an .approximate estimate of the value of the ultimate devise appears and it may be made; but when the question as_ to whether any property at all shall pass under the limitation over, and if so, how much, depends upon the will of the first taker, we are unable to see any rule by which such value can be determined.

In the case first mentioned, the act enables a tax to be imposed and collected upon the ulterior devisees, through the medium of a bond to be given by the respective legatees, payable when they come into the possession of the devised property. (Sec. 2, chap. 483, Laws of 1885.)

In the latter case, however, there is no basis upon which the value of the devise can be appraised, and no basis for the imposition of any tax and the provision from the giving of a conditional bond is therefore wholly inapplicable.

Whether an appraisal of the value of these devises, for the purpose of taxation, may be made, where they eventually come to the possession of the devisees, we are not called upon now to determine. It may be that the tax will be altogether lost to the state if an appraisal is not now allowed; but if so, the fault lies in the act itself, and not in the construction which its language requires to be put upon it.

The order of the general term is, therefore, affirmed. .

All concur.  