
    Matter of the Estate of Josephine L. Newcomb, Deceased.
    (Surrogate’s Court, New York County,
    July, 1901.)
    ■Transfer tax — Fund in litigation not taxable.
    Where a trust fund, alleged to form a part of the estate of a decedent, is claimed by her husband’s heirs and proof is made that they intend to litigate their claim up to the court of last resort, no transfer tax can presently be imposed upon the fund nor hereafter unless the estate of the decedent shall succeed in the litigation.
    Proceedings upon the report of an appraiser, appointed under the Transfer Tax Act.
    Wilmer & Canfield, for executors.
    Julius Offenbach, for comptroller.
   Fitzgerald, S.

Included in the property assessed for the purpose of taxation by the appraiser is a trust fund, which is claimed by the heirs of decedent’s deceased husband. It appears by the affidavit of one of the executors, annexed to the report, that the attorneys for these heirs intend to litigate this claim and to carry the matter to the court of last resort; that the ownership of said fund is, therefore, at the present time undetermined. In Matter of Westurn, 152 N. Y. 93, where an alleged asset of the estate was in litigation, the court said (p. 103) : “ It was, we think, the plain duty of the surrogate to have excluded this claim' from valuation at the time, reserving it for future appraisement in case the administrator succeeded in collecting it.” With respect to another claim, also-in litigation, the court stated that, if it was well founded, it was manifest a tax could not be assessed against the appellants; that they would, in the case supposed, have no taxable interest, and the surrogate should have postponed the appraisement until the litigation was determined. The amount of this trust fund must be excluded in determining the value of the estate presently taxable. An order may be entered accordingly, which may in terms reserve this fund for a future appraisal in the event that the litigation terminates favorably to the estate.

Decreed accordingly.  