
    In the Matter of the Estate of Mary E. Bird, Deceased.
    
      (Surrogate’s Court, New York County
    
    
      Filed July 26, 1890.)
    
    1. Collateral inheritance tax — Legacy of $500.
    A legacy of $500 is of the fair market value of its face and is subject to the tax imposed by chap. 713, Laws 1887.
    3. Same — Descendant of adopted child.
    A legacy to the child of an adopted child is not exempt from tax.
    Appraisal of collateral inheritance tax.
   Ransom, S.

The main question to be disposed of in this matter is whether a legacy of $500 is of the fair market value of its face, and hence subject to. the tax imposed by the act, chap. 713, Laws of 1887.

By § 1 of this act it is provided that an estate which may be valued at a less sum than $500 shall not be subject to such duty or tax. The question seems plainly answered in the affirmative by the act itself, the only source of information on the subject. The intent of the legislature is to be ascertained, and such seems to me to have been that all property of the value of not less than the sum of $500 at the date of decedent’s death, passing by will or by our intestate law to collaterals, is subject to a tax of five per cent thereon, which is declared by the act to be a lien upon the property to be taxed, and is a condition lawfully imposed by the legislature upon the devolution of the title to such property. The title to the property vested in the legatee or distributee at the date of decedent’s death. At that time it passes to him, and, by the words of the act, its fair and clear market value must be ascertained as of that date, by an appraisement to be then had. And the tax is declared to be then “ due and payable,” and at that time the right of the state to the tax vested.

By § 4 of the act it is provided that the legatee or distributee may have eighteen months within which to pay the tax, without, interest. It would seem, therefore, that the legislative intent is clear. For six months after the legacy may have come to his possession the legatee is relieved from the payment of the tax. It. seems to me plain that the legislature, in order to effectuate the purpose of this act, were compelled to provide a time when the-value of the property subject to the tax must be ascertained, and upon that value the. tax must be paid as a condition of its delivery to the legatee. -The machinery provided for ascertaining-the valué of such property was not intended for use in respect of moneyed legacies. Section 6 of the act proves the soundness of this proposition, I think: “ If the legacy be money the executor shall deduct the tax therefrom, or if the legacy or property be-not money he shall collect the tax thereon upon the appraised value thereof from the legatee or person entitled to such property; and he shall not deliver or be compelled to deliver any specific, legacy or property subject to tax to any person until he shall have collected the tax thereon.” This section further provides that “ if such legacy be given in money to any person for a limited period, he (the executor) shall retain the tax upon the whole amount.”

Thus we see that the legislature plainly distinguished between a moneyed legacy and one of other property, and find authority for the construction which has been given to this act by me in several cases heretofore, that a money legacy need not be appraised. In fact, the meaning of the act itself is an appraisement by the legislature of a money legacy at its face value at the date of the decedent’s death. Legacies of property not in money are to be appraised at their fair, clear market value, as of the date of decedent’s death, not as of one year thereafter, when the legacy is payable and its delivery may be enforced.

It is said that the fair, clear market value of the property subject to the tax is what it will be worth when the legatee is entitled to receive it, and may compel its delivery to him. This construction of the act works its repeal. Moreover, it is contrary to its very letter. The soundness of this proposition is shown by a consideration of the rights of the parties in case of property other than money, which had appreciated in value since decedent’s death, for instance, stocks. I am aware that the learned surrogates of Westchester and Kings counties have decided this question differently; they have appraised the money legacy at what it will be worth to the legatee at the end of the year, and to ascertain that fact they take five per cent from its face value. I confess I am unable to perceive any authority for that rate of discount. Legal interest is six per cent, and, if any discount should be allowed, why not at the legal rate of interest? At this point it occurs to me that the rate of interest might be increased or diminished within a year after decedent’s death, and, of course, any change in the rate of interest would, according to the construction of the learned surrogates, affect the market value of the legacy. I am unable to accept their construction of this act, and I must hold that the legacies of $500 each are subject to the tax.

Another question is presented by counsel for executor, who has most ably and ingeniously argued against the liability of these legacies to the tax, to wit: that one of the legatees should be held exempt upon the ground that she is a child of an adopted child, and, as such, falls within the exempted class. I cannot acquiesce in this construction. The statute is very explicit in stating the classes that are exempted, and expressly declares that a person adopted, or who has stood for more than ten years in the mutually acknowledged relationship of a parent, is exempted, not the descendant of such person.

Appraiser’s report is confirmed.  