
    In re OFFERMAN’S ESTATE.
    (Supreme Court, Appellate Division, Second Department.
    January 11, 1898.)
    1. Transfer Tax—Assessment.
    In making an appraisal and assessment, under the transfer tax, upon the estate of a testator who died April 28, 1896, the tax is to be imposed upon the property in the form in which it stood when he died.
    2. Same.
    The amount directed by the terms of his will to be used in paying off existing mortgages upon his real property should be treated as personal property.
    Appeal from surrogate’s court, Kings county.
    In the matter of the appraisement, under the transfer tax acts, ol the property of Henry OfEerman. From the decree, the legatees and devisees appeal.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    Charles H. Otis, for appellants.
    Robert B. Bach, for respondent.
   GOODRICH, P. J.

Henry Offerman died April 28, 1896, leaving a last will, which was admitted to probate on May 8, 1896. The will made a number of specific bequests, and devised and bequeathed all the rest of the estate, real and personal, to his five children, share and share alike. The fourth clause of the will reads as follows:

“I hereby direct my executors, hereinafter named, as soon as practicable after my decease, out of my personal estate, to pay off, and procure to be canceled, satisfied, and discharged of record, any and all mortgages which shall be a lien upon the real property of which I shall be seised at the time of my decease, or upon any part thereof.”

An appraiser was appointed by the surrogate, and the estate was appraised and assessed as follows:

Total value of personal estate............................... $1,533,181 60
Less debts ..................................... $421,740 27
Mortgages payable on real estate................. 108,000 00
529,740 27
$1,003,441 33

The surrogate made an order confirming the report, and assessing the amount of the transfer tax upon the last-named sum, thus ássessing no tax on the amount of the mortgages; and from this order the county treasurer applied to the surrogate, who ordered the matter of the appraisal to be remitted to the appraiser to amend his report, by taxing the $108,000 of mortgages. This being done, the surrogate entered a decree confirming the report, and from this decree the legatees and devisees appeal.

This court had occasion to pass upon a similar question in Re Sutton’s Estate, 3 App. Div. 208, 38 N. Y. Supp. 277, and held that the transfer tax should be imposed upon the property in the form in which it stood when the testator died; and this was in accord with the decision of the appellate division in the first department in Re Livingston, 1 App. Div. 568, 37 N. Y. Supp. 463.

The decree must be affirmed, with costs. All concur.  