
    In the Matter of the Appraisal of the Property of Sophia H. Kennedy, Under the Act in Relation to Taxable Transfers of Property.
    (Surrogate’s Court, New York County,
    June, 1897.)
    1. Transfer tax — Similar tax paid in a foreign state.
    Where an appraisal is had, under the Transfer Tax Act, of stock in New York corporations which was owned by a resident of Pennsylvania at the time of her death in October, 1895, the appraiser should not make any deduction for the amount of a legacy tax paid in Pennsylvania upon the entire estate, as the fact that the legacy has been taxed, or will be taxable, in a foreign state, cannot be considered by our courts.
    2. Same — Deduction for executor’s commissions in a foreign state.
    Where no proof is made, upon such an appraisal, as to the rate of executors’ commissions in a foreign state, an appraiser, acting under the Transfer Tax Act, should make a deduction, based upon the relative amount of property in this state, at the rate at which commissions are allowed in this state to executors.
    Appeal to surrogate from order of surrogate fixing tax as of course on report by appraiser who excluded claim for deduction of transfer tax and commissions paid at domicile of decedent.
    Strong & Cadwalader, for appellants.
    Emmet R. Olcott, for respondent.
   Fitzgerald, S.

The decedent was a resident of Pennsylvania at the time of her death in October, 1895. She owned stock in New York corporations, taxable under the Bronson decision, 150 N. Y. 1. The property in New York was in proportion to the entire estate as two to five, and the appraiser deducted that proportion of the total debts, funeral and administration expenses from the taxable estate in this state. He refused, however, to deduct tins proportionate sum from the amount of the legacy tax paid upon the entire estate in Pennsylvania, about $20,000. The fact that a legacy will be liable to a tax is not 'considered by the court in ascertaining upon what sum the tax is levied. Thus in the case of a resident collateral legatee, the court is aware that he will receive but 95 per cent, of its amount. Should the 5 per cent, tax for that reason be calculated upon that 95 per cent., and not upon the face of the legacy? So, too, the fact that when the fund is transmitted to'the domiciliary jurisdiction, a deduction will be made for a legacy tax, should not be considered in fixing the value of • the shares for the purpose of taxation. In the Matter of Swift, 16 N. Y. Supp. 193 ; affirmed in Court of Appeals, 137 N.Y. 77, the will directed that the succession tax should be paid by the executors as an expense of administration. The appraiser deducted the amount of tax on other legacies from the value of the residuary estate, and was overruled by the surrogate. The appraiser herein correctly refused to make this deduction. It appears by the schedule filed with the appraiser that nearly $12,000. was paid as- executors’ commissions in Pennsylvania. The briefs of counsel state (but it nowhere appears in the proofs) that a larger percentage is allowed there than in Mew York for this purpose. The appraiser calculated the commissions at the rate allowed by the Mew York statute, and deducted á proportionate amount. therefor. It is unnecessary to decide whether had the appellant proved the foreign law on this subject I would have made the deduction claimed. There being no evidence, and the deduction claimed being excessive under our statutes, the appraiser is sustained. The order-appealed from is affirmed. ■

Order affirmed.  