
    In the Matter of the Estate of Joshua Mather, Deceased. Nathan L. Miller, as Comptroller of the State of New York, Appellant, Respondent; Ida F. Lovelace and Nicholas Pendergast, as Administrators, etc., of Charles W. Mather, Deceased, Respondents, Appellants. Maud Mather McChesney and Others, Respondents.
    
      Transfer tax—imposed on a life tenant of real property, where (although holding a-deed thereof from, the testatoi•) he elects to treat it as part of the testator's estate — the life tenant’s heirs acquiring the estate in remainder are not bound by hi» election.
    
    Joshua Mather, who died in August, 1893, by his will, gave his nephew, Charles W. Mather,, a life estate, in his residuary estate, and empowered the said. Charles W. Mather to dispose of the remainder of the residuary estate by will among his descendants, and provided that, in default of a will, the remainder of the estate should pass to the heirs at law and next of kin of the said Charles. W. Mather.
    Upon the appraisal of the estate of Joshua Mather, for the purposes of the transfer tax, Charles W. Mather testified that Joshua Mather was, at the time of his death, the owner of a certain piece of real property. A transfer tax was thereupon assessed upon the life interest of Charles W. Mather in the real property in question, and the tax upon the remainder of the residuary estate was suspended until his death.
    Charles W. Mather died intestate, and among his papers was found an unrecorded deed executed to him by Joshua Mather, conveying the property in question. This deed was made and delivered during the lifetime of Joshua Mather, and there was nothing to impeach its validity excepting the statement made by Charles W. Mather upon the- assessment proceedings.
    
      Held, that Charles W. Mather, having, for some undisclosed reason, voluntarily determined to ignoré his absolute title to the property and to submit to the imposition of the transfer tax upon his life interest, such transfer tax should not be vacated;
    That the statement of Charles W. Mather that Joshua Mather owned the property in question at the time of his death was hot binding upon his heirs;
    That they were entitled to stand upon their title derived under the will of Joshua Mather, or upon their title derived under the deed from Joshua Mather;
    That having elected, at the first opportunity afforded them, to stand upon their title under the deed, they were not liable for a transfer tax.
    Hiscóck, J., dissented.
    Cross-appeals by Nathan L. Miller as Comptroller of the State of New York, and by Ida F. Lovelace and another, as admiiiistrators, etc., of Charles W. Mather, deceased, from an order of the Surrogate’s Court of the county of Oneida, entered in said Surrogate’s Court on the 28th day of September, 1903, modifying in some respects and refusing to modify in other respects an order theretofore entered in said court adjusting the transfer tax upon the estate of Joshua Mather, deceased.
    
      Charles R. Coville and Russel S. Johnson, for the State Comptroller.
    
      Smith M. Lindsley and William S. Mackie, for the administrators.
    
      Josiah Perry, for the respondents.
   Stover, J.:

Two appeals herein, from an order of the Oneida county surrogate, are presented. The administrators of Charles W. Mather appeal from that part of the order .which modifies the original taxing order. The State Comptroller appeals from that part of the order which granted the application of Mrs. McChesney, a daughter of Charles W. Mather.

Joshua Mather died in August, 1893, leaving a will, which was admitted to probate September 11, 1893.

The will,of Joshua Mather, after certain other provisions, by the 23d clause thereof, gave to Charles W. Mather, a nephew of the testator, the possession, use, income, profits and rents of the residuary estate during his lifetime, and the entire, control and management of the estate, personal and real, as he might deem for his best interests and that of the persons who, under the will, would be ultimately interested in the estate, of which he was to have the income during hie lifetime, authorizing him to conduct the business in' the name of the testator or otherwise, and empowering the said Charles W. Mather to make such disposition of the estate as he might deem wise among his descendants whom he might leave, and in such proportions and amounts as he might desire. He further provided that if, for any reason, the said Charles W. Mather failed to make such will, or if such will was not admitted to probate, the property enjoyed by; said Charles W. Mather during his lifetime should go to the persons whom the said Charles W. Mather might leave as his next of kin and heirs at law at the time of his death in the same manner and proportions as if the said Charles W. Mather had been the absolute owner thereof at the date of his death and had died intestate and unmarried,

Charles W. Mather was also constituted sole executor of the will, the 24th clause of said will providing as follows: “ And he,” referring to said executor, shall in no event be required to furnish any bond or security as such executor, and no person Or court shall compel him to account for how he manages "my estate, or how he invests the same as executor and legatee and devisee under this my last will .and testament.”

Upon the completion of the probate of the will of Joshua Mather the estate was appraised, and Charles W. Mather assumed the duties of executor and continued such during his lifetime.

Upon the appraisal of the estate, Charles W. Mather was examined and testified that Joshua Mather, at the time of his death, was the owner of certain real estate in the city of Utica, and known as the Arcade property, being generally described as about 120 feet on Genesee street and 150 feet deep.

This Arcade property was appraised at $175,000, and the tax upon the life interest of Charles W. Mather was fixed at $4,852. The tax upon the residuary interest was súspended until the death of Charles W. Mather, as it was uncertain to whom the property would descend; if it was disposed of by the will of Charles W. Mather, his estate would be liable for the tax,’ and if not, then the persons to whom it descended would be chargeable therewith.

Charles W. Mather died in November, 1899, intestate, not having exercised the power of disposition given by the will. The petitioners are the heirs of Charles W. Mather.

After the death of Charles W. Mather, a deed, executed by Joshua Mather to Charles W. Mather, conveying the Arcade property above mentioned was found among the papers of Charges W. Mather. The petitioners thereafter, upon investigation, made an application to the Surrogate’s Court to have the assessment set aside, the Arcade property stricken from the proceedings had upon the assessment, to correct , the .report,..and,.order.. by ...striking, .therefrom., theamount included therein as a tax upon the Arcade property, and for other relief. The surrogate, upon such application, after taking evidence, modified the order, in. so far as it assumed to assess a tax against thet heirs of Charles W. Mather, hut refused to set aside or modify the assessment as against Charles W. Mather. This appeal was thereupon brought.

We think the order of the surrogate was right. The evidence clearly showed that the deed from Joshua Mather to Charles W. Mather was made and delivered during the lifetime of Joshua Mather, and, although it was not recorded until after the death of Charles W. Mather, there was nothing to impeach its validity, except the statement made by Charles W. Mather upon the assessment proceedings.

It is true that the evidence that he made a statement is not contradicted, nor is it explained, and it may be quite possible that if the original parties were able to speak, some explanation could be given of that statement; but whatever force it might have against Charles W. Mather, his heirs, the petitioners herein, would not be bound by such statement.

Charles W. Mather, for some undisclosed reason, determined to ignore the absolute title for the time being, and submit to the imposition of the tax. He was under no restraint or duress; whatever he did was voluntary, and, presumably, for what he deemed to be his best interests. His heirs, however, have the same right that he had, namely, to rely upon their title under the will of Joshua Mather, or upon the deed from Joshua Mather. Unlike their ancestor, they prefer to rely upon the deed, and they are not foreclosed from doing this by any act of Charles W. Mather. It is true that, as to the property, they acquire no better title than Charles W. Mather had, but as to the method of the enjoyment of their estate, they are quite independent of and not bound by any acts of Charles W. Mather. The statement and act of Charles could only affect his estate and his enjoyment of the property, and therefore, the tax was properly levied against him, as, upon his own statement, he claimed under the will; but he did not assume to bind his heirs, nor would they be estopped by his statement, had he so assumed. Ho tax has ever been assessed against them, they have promptly asserted their rights, and, upon the first opportunity to be heard, have elected to stand upon their title under the deed. .They have been guilty of no laches, and no valid reason has been presented for estopping them from so doing.

The order of the surrogate must be affirmed, with ten dollars costs and disbursements.

All concurred, except Hiscock, J., who dissented from the affirmance of that portion of the order which relieves the heirs from taxation upon the Arcade property.

Order affirmed, with ten dollars costs and disbursements.  