
    Matter of the Estate of James Connoly, Deceased.
    
      (Surrogate’s Court New York County,
    
    
      July, 1902.)
    Collateral inheritance tax—On defeasible remainders.
    A decedent who died when chapter 399 of the Laws of 1892 was in in force gave the income, of his estate to his wife for life and directed that the estate should he divided at her death, which, occurred in March, 1901, among his children then surviving. In 1895 the tax on the life estate was fixed hut not that upon the remainders and this because they although vested were defeasible.
    Held, that in determining the collateral inheritance tax on the remainders as of the widow’s death section 230 of the Tax Law of 1896, as it stood in 1897, 1901 and 1902, applied and that under it the remainders were taxable at their full value without deduction for the life estate of the widow.
    
      Quaere whether said section 230 could be deemed unconstitutional as impairing the value of a vested estate.
    Proceeding for ascertaining the collateral inheritance tax.
    Lewinson, Kohler & Schattman, for remaindermen; Edward H. Fallows, for comptroller.
   Thomas, S.

deceased died November 15, 1892, leaving a will by which he gave the income of his estate to his wife for life, and directed that it should be divided at her death among his children then surviving. The law controlling taxable transfers of property then applicable was chapter 399 of the Laws of 1892. Pursuant to that statute an appraisal of the property passing under the will was made in 1895, and the value of the entire estate at the time of the death of the testator was determined. "Upon the basis of this the value of the life interest of the widow was computed and a tax thereon was fixed by an order of a surrogate, which tax was paid. The interests of the remaindermen, though vested, were subject to be defeated by the-contingency of the death of any of them before the time appointed! for division, and for this reason it was determined by the surrogate that the tax on such remainder interests could not then-be determined. The widow died on March 15, 1901, and the present application is to fix the tax on the remainders. If the-tax on the remainders had been fixed in 1895, or if it should now be fixed by the law then in force, it is quite clear that the aggregate tax on all of the remainders would have to be computed on the difference between the valuation made in 1895 of the entire estate of the testator as of the date of the death of the testator, and the valuation then made of the life estate passing to the widow. Laws of 1892, chap. 399, § 11. This rule was changed by chapter 284 (§ 6) of the Laws of 1897, amending-section 230 of the Laws of 1896 (chap. 908). The amendment now referred to was in the following words: Estates in expectancy which are contingent or defeasible shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estates for the purposes of taxation, upon which said estates in expectancy may have been limited.” This section, 230 was again amended by chapter 76 of the Laws of 1899, and the provision referred "to was then omitted (Estate of Ogden Goelet, Surr. Decs. 1901, p. 383), but a later amendment by chapter 173, Laws of 1901, restored and re-enacted it in similar language, as also, did a further re-enactment of the section by chapter 496 of the Laws of 1902. If the provisions of the-statutes of 1897, 1901, and 1902 are constitutional and valid it is evident that the tax now to be determined must be computed on the value of the interests of the remaindermen at the time they came into beneficial possession or enjoyment thereof, to wit, at the date of the death of the widow in March, 1901. It is not contended by the state comptroller that, in the present case, the gross value of the estate differed from the amount of the previous appraisal, but he resisted any deduction of the value of the "widow’s life estate, and in doing this he merely asserts the rights of the State under the statute now in force. An interesting question of constitutionality is presented as to which the reasoning of the Court of Appeals and of the Appellate Division of the Supreme Court in Matter of Pell, 171 N. Y. 48, rev’g 60 App. Div. 286, may possibly apply. It may be that the legislation here applicable impairs the value of a vested estate, and is, therefore, unconstitutional and void, but it is a wholesome rule, not lightly to be departed from, that a law of the State should not be ■declared void by a court of first instance, and I will therefore ■determine the law valid, and refrain from further discussion of the constitutional questions which may or may not apply. It follows that the tax should be fixed upon the gross amount of the ■estate.

Decreed accordingly.  