
    Matter of Taxing Certain Remainder Interests under the Will of Robert Irwin, Deceased.
    (Surrogate’s Court, New York County,
    November, 1901.)
    Transfer tax — Bes ad judicata, when inapplicable — Void accumulation.
    A tax appraiser’s omission to tax the life interest of an infant in a trust fund whose income was payable to him “ from the time he attains the age of thirty years during his life and after his death leaving lawful issue him surviving ” the said sum and all accumulations to go to his issue, put upon the ground that the value thereof could not then be ascertained and that the ultimate legatees were indefinite and uncertain, is not an adjudication that the interests of the infant are not taxable at all but amounts to an express reservation of the matter of taxation; and therefore where he attains majority, has issue, and the accumulation beyond his minority is declared illegal and he entitled, as the person entitled to the next eventual estate, to the income intermediate his majority and his arrival at the age of thirty years, his interest is taxable.
    Appeal from an order assessing the transfer tax.
    Frank J. McBarron, for executors.
    Robert C. Taylor, for Irwin A. Powell.
    Edward H. Fallows, for comptroller.
   Fitzgerald, S.

In view of the concession of the comptroller, the only question to be disposed of on this appeal is the taxability of the trust fund of $250,000, created by the seventh clause of the will of decedent for the benefit of his grandson. This fund was given to the executors in trust to hold and invest and receive the income thereof, and they were directed to pay the income to the said grandson “from the time he attains the age of thirty years during his life and after his death leaving lawful issue him surviving ” the said sum and all accumulations were given to said issue. The grandson attained majority December 8, 1897, and now has living issue. In September, 1893, a tax appraiser was appointed who filed a report on June 8, 1897, in which he found that the provision for accumulation of income beyond minority was invalid and that, as the person entitled to the next eventual estate, the grandson was entitled to the income intermediate his majority and his arrival at the age of thirty years. An order was subsequently entered in accordance with said report, which omitted from taxation the trust fund referred to. In the meantime the will had been similarly construed in a proceeding brought for the judicial settlement of the account of the executors and trustees. In 1899 the present proceeding was instituted. The appraiser reported the value of “ the life estate in remainder interest passing under paragraph 7 of the will ” to the grandson, and from the order entered accordingly this appeal is taken. The appellant claims that the will, as construed, actually vested in the grandson an interest in said income from the death of testator; that this interest was taxable, if at all, immediately after the death of decedent; that the order entered on the first appraisal purported to assess and tax, and actually did assess and tax, the interests of said grandson; that the omission to tax his interest in the trust fund at that time is an adjudication that it was exempt, and the State is barred by the order then entered from asserting that any interest which was then taxable can now be taxed. It will be observed that the first appraiser reported that these interests were not then taxable for the reason that their value could not then be ascertained and the ultimate legatees were indefinite and uncertain. Thus there was an express reservation of the taxation of these interests, which, while not incorporated in the order, explains the omission. The doctrine of res adjudicata has no application, for there was not only no judgment of exemption, but a specific postponement of a consideration of the matter. The order, in so far as it taxes the transfer of this interest, is affirmed.

Order affirmed.  