
    Matter of the Estate of Josephine Penfold, Deceased.
    
    (Surrogate’s Court, New York County,
    November, 1914.)
    Taxes — transfer tax—meaning of “transfer” as used in sections 220 and 222 of Tax Law—what may not be considered in assessing transfer tax.
    The word “ transfer ” as used in sections 220 and 222 of the Tax Law means the passing of property or any interest therein by inheritance or will.
    A transfer tax is imposed upon the value of the estate of a decedent at the date of his death and any increase or diminution in value between such date and the time of the distribution of the estate may not be considered in assessing the transfer tax.
    Application to modify an order fixing the tax upon estate of decedent.
    Mitchell & Mitchell (William Mitchell, of counsel), for executor.
    Edward F. Boyle (Ellwood M. Rabenold, of counsel), for state comptroller.
    
      
       See 81 Misc. Rep. 598.— Repr.
    
   Fowler, S.

This is an application to modify the order fixing tax upon the estate of decedent by reducing the cash value of.the interests of the residuary legatees and the tax assessed on such interests. The order fixing tax was entered on the 15th of April, 1913. The decedent died on the 3d of April, 1912. She bequeathed her residuary estate to her brothers, Edmund Penfold and William Plall Penfold. The executor of her estate filed with the transfer tax appraiser an affidavit containing a list of the securities of which she died possessed. The affidavit also contained the executor’s estimate of the value of the securities on the date of decedent’s death. The appraiser accepted the executor’s valuation of the securities, and in his report he appraised the value of the interests of each of the residuary legatees at $342,308.96. The order entered upon his report assessed a tax of $6,619.27 on the value of each interest. The petition herein alleges that between the date of decedent’s death and the date when distribution was made to the legatees the market value of the securities diminished, so that at the latter date the value of the respective interests of the residuary legatees was $309,035.96. The petitioner, therefore, asks that the order fixing tax be modified by substituting $309,035.96 for $342,308.96 as the value of the interest of each of the residuary legatees, and $5,621.08 instead of $6,619.27 as the tax on each interest. Section 220 of the Tax Law provides that a tax is imposed upon the transfer of property * * * where the transfer is by will,” and that “ the tax imposed hereby shall be upon the clear market value of such property.” 'Section 222 provides that “ all taxes shall be due and payable at the time of transfer except as herein otherwise provided.” The exception has no application to the matter under consideration. The word transfer ” is defined in the statute to include “ the passing of property or any interest therein by inheritance, devise, bequest,” etc. In Matter of Vassar, 127 N. Y. 1, it was held that the property should be appraised as of the date of decedent’s death, and that the increase in value of the property from the date of death to the date of distribution among the legatees is not subject to tax. Conversely, any diminution in the value of the property between the date of decedent’s death and the date of distribution by the executor should not be taken into consideration in ascertaining the value of the property for the purpose of assessing a transfer tax. In Matter of Davis, 149 N. Y. 539, the court said: “ The true test of value hy which the tax is to be measured is the value of the estate at the time of transfer of title, and not its value at the time of transfer of possession. The valué of the particular estate transferred may increase or be diminished during the time which intervenes between the passing of title and acquiring possession by the beneficiary, but we think that circumstance does not affect the value of the estate as a basis upon which the tax is to be imposed.” When the transfer is effected by will or by the intestate laws, it takes place at the moment of death. Matter of Seaman, 147 N. Y. 69; Matter of White, 208 id. 64. In Matter of Meyer, 209 N. Y. 386, an application was made to the surrogate to vacate the order fixing tax upon the ground that the appraisal was grossly inaccurate, as the appraiser reported the value of the estate to be' about $8,000, while as a. matter of fact the beneficiaries did not receive any property .under the will. The surrogate denied the application and the Court of Appeals, in affirming the order of the surrogate, said: The test by which the tax is to be measured is the value of the interest or property transferred at the time of the death of the testatrix.” It would, therefore, appear to be well settled by the decisions of the courts of this state that the transfer tax is imposed upon the value of the property at the date of decedent’s death, when such value can be ascertained, and that any increase or diminution in the value óf the property between the date of decedent’s death and the date upon which distribution is made among the beneficiaries is not to be taken into consideration in assessing the tax. The application for a modification of the order fixing tax is denied. ’

Application denied.  