
    Matter of the Estate of Josephine Slosson, Deceased.
    (Surrogate’s Court, New York County,
    November, 1914.)
    'WILLS—Default of exercise of power of appointment over a tax fund—Directions as to certain part of a trust fund—Directing PAYMENT OF DEBTS FROM TRUST FUND-WHEN INTERESTS OF BENEFICIARIES SUBJECT TO TRANSFER TAX—RENUNCIATION OF LEGACIES—. Transfer tax.
    In default of the exercise of a power of appointment over a trust fund, the persons entitled to take it upon the death of the donee of the power are those who under the laws of the state of which the donee was a resident at the time of her death would be entitled to her personal property if she had died "intestate; in this state her husband and next of" kin.
    The last will of decedent’s father, after directing the payment to her, his daughter, of a certain part of the income of a trust fund for life, and, on her death, payment of the trust fund ■ as she by will might direct, provided: “and in default of such last will to pay over the same to those who by law should be entitled to receive it, had she died intestate seized or possessed thereof in her own right.” The decedent after several bequests directed that her debts be paid from the trust fund and the' balance thereof paid over to her issue, her surviving, per stirpes. Her husband to whom she made a bequest from the trust fund predeceased her. In a transfer tax proceeding, decedent’s three children elected to take their respective shares of the trust fund under the will of their grandfather. Held:
    That there was a valid exercise of the power of appointment by decedent and a valid and effective disposition of the trust fund and that the interests of the beneficiaries thereof were subject to a transfer tax.
    That decedent’s surviving children could not take under the will of their grandfather because the contingency upon which their right to so take, namely the failure of their mother to make a valid disposition of the .property by will, never took place.
    That said children not having renounced their legacies under the will of their mother, the question of the disposition of her estate or its taxation in the event of such renunciation was not before the court for determination.
    Money advanced by a legatee to whom decedent was not indebted to pay certain creditors was not properly included in the taxable interest bequeathed to said legatee.
    Appeal from an order fixing the tax upon estate of decedent.
    A. Henry Mosle (Hugo Kohhnanü and Carroll H. Brewster, of counsel), for appellants.
    Edward F. Boyle, for state comptroller.
   Fowler, S.

This is an appeal by the executor from the order fixing tax. The decedent, who was a resident of New York, died on the 2d of January, 1918. Her father, Peter Naylor, died on the 27th of November, 1872, leaving a will by which he directed his trustees to pay the income from a certain part of a trust fund to his daughter Josephine during her life, and on her death to pay over said fund as she by her last will should devise, bequeath or direct, “ and in default of such last will to pay over the same to those who by law should be entitled to receive it, had she died intestate, seized or possessed thereof in her own right.” Josephine Slosson, the decedent herein, exercised the power of appointment given her, by bequeathing to her husband $5,000 of the trust fund. She also gave $500 to Margaret Gillesse, and directed that her debts be paid out of the trust fund. The balance of the trust fund she directed to be paid over to her issue her surviving, per stirpes. Her husband predeceased her. She was survived by three children and they have elected in this proceeding to take their respective shares of the trust fund under the will of their grandfather, Peter Naylor. The appraiser ascertained the value of the trust fund to be $98,261. He reported that the shares of the children were subject to a transfer tax, and that the sum of $24,159 paid to decedent’s creditors in accordance with the provisions of her will was also subject to a tax. The appraiser’s report shows that one of decedent’s children was born in 1881, but it does not show when the other two children were born or whether they were in being at the date of death of Peter Naylor, the grantor of the power. It is obvious, therefore, that the child born in 1881 did not, upon the death of Peter Naylor in 1872, take a vested interest in the remainder after the life estate of the decedent in the trust fund. In default of the exercise of the power of appointment the persons who would be entitled to take the trust fund upon the death of the donee of the power would be those who under the laws of the state of which she was a resident at the time of her death would be entitled to her personal property if she had died intestate. These persons, under the laws of this state, would be her husband and next of kin. But until her death she could have no next of kin (Whittlemore v. Equitable Trust Co., 162 App. Div. 607); therefore it was not until her death that the persons who would take the trust fund in default of the exercise of the power could be ascertained and their interests determined. It has been held that where a power of appointment is exercised in favor of those who would take the property if the power had not been exercised they may elect to take under the will of the grantor of the power; and if the grantor died prior to the enactment of the Transfer Tax Law their interests would not be subject to a tax. Matter of Lansing, 182 N. Y. 238; Matter of Haggerty, 128 App. Div. 479; affd., 194 N. Y. 550. The exercise, or in other words the execution, of the power by the decedent herein prevented the principal of the trust fund from passing to the persons who would take the entire fund if she had died intestate or had failed to exercise the power. Her execution of the power diverted $25,341.12 of the trust fund from her next of kin to persons who would not be entitled to any of the fund if the power had not been exercised. There was, therefore, a valid exercise of the power by the decedent and a valid and effective disposition of the trust fund over which she was given a power of appointment by the will of her father. In this proceeding her children say that they elect to take under the will of their grandfather. But a reference to that will discloses that he directed his trustees to pay the trust fund to the persons to whom it was bequeathed by the will of his daughter, the decedent herein, and it was only in default of her disposing of it by her last will that he directed it should be paid to those entitled to take her property under the intestate laws. As she made a valid disposition of the trust fund by her will, the alternative direction to pay over the trust property to her next of kin was rendered ineffective. The children, therefore, cannot take under the will of their grandfather because the contingency upon which their right to take under that will, namely, the failure of their mother to make a valid disposition of the property by will, never took place. As the decedent by her last will executed the power given to her under the will of her father and effectively disposed of the trust fund therein mentioned, the interests of the beneficiaries are subject to a transfer tax. Matter of Cooksey, 182 N. Y. 92. The children of decedent have not renounced their legacies under her will and, therefore, the question of the disposition of the property or its taxation in the event of such a renunciation is not now before the court for determination. The decedent had a right or power to direct that the trustees of the trust fund should pay her debts out of that fund. The sum of $24,840 was so paid by the trustees to creditors of the decedent, and its transfer is taxable under the provisions of the Tax Law. Matter of Rogers, 71 App. Div. 461, affd., 172 N. Y. 617. The decedent was not indebted to Alice Slosson at the date of her death. The $682.04 paid to her by the trustees of the trust fund represented various claims against the decedent which had been settled by Alice Slosson after the death of the decedent but prior to the distribution of the trust fund. The fact that Alice Slosson advanced to the executor sufficient moneys to pay those creditors whose claims aggregated $682.04 did not justify the appraiser in including this amount in the taxable interest bequeathed to Alice Slosson. The order fixing tax will, therefore, be modified by deducting this amount from the value of the bequest to Alice Slosson. In all other respects the order; fixing tax is affirmed.

Order affirmed.  