
    In the Matter of the Appraisal under the Estate Tax Law of the Estate of Dorothea Barney Harding, Deceased. State Tax Commission, Appellant; Charles Barney Harding and Wm. Barclay Harding, as Executors, etc., of Dorothea Barney Harding, Deceased, Respondents.
    Present — Martin, P. J., O’Malley, Townley, Untermyer and Cohn, JJ.; Untermyer, J., dissents; dissenting opinion by Untermyer, J.
   Untermyer, J.

(dissenting). It is now settled that intangible property situated without the State may be included in determining the amount of tax to be assessed upon so much of the estate of a non-resident as is within the State. (Matter of Lagergren, 276 N. Y. 184.) I do not agree that in ascertaining the amount of the estate for purposes of taxation the total deductions enumerated in section 249-s are to be subtracted exclusively from the real and personal property situated within the State. On the contrary, section 249-p contains a formula which, if followed, will do justice to the estate and to the taxing authorities. It provides for the determination of the tax which would be payable “ if the decedent had died a resident of this State with all his property (except real property situated and tangible property having an actual situs outside this State) situated or located within this State.” Necessarily the determination of that amount requires the deduction from the gross estate, as computed in accordance with section 249-r, of the claims and expenses specified in section 249-s of the Tax Law, thereby resulting in proportionate allowance for such deductions when the net estate is multiplied by the fraction specified in section 249-p.

The order should be reversed and the proforma order assessing the tax reinstated.  