
    The People of the State of New York ex rel. Florence C. Kight, Relator, v. Thomas M. Lynch and Others, Constituting the State Tax Commission of the State of New York, Respondents.
   Per Curiam.

The relator by the last will and testament of her deceased husband received an income from a trust estate created by said will. It was provided that such income should be in lieu of dower, and the widow so accepted it. This in legal effect was a purchase of an annuity. (Isenhart v. Brown, 1 Edw. Ch. 411, 413; Warner v. Walsh, 15 F. [2d] 367.) Such income, at least where the value is not grossly disproportionate to that of the property relinquished, is not taxable until her capital investment is returned to her. (Warner v. Walsh, supra; United States v. Bolster, 26 F. [2d] 760; Allen v. Brandeis, 29 id. 363.) Practical reasons suggest that there should not be contradictory rules relating to the same income; and sound reasoning supports the doctrine adopted in the Federal courts. The Tax Commission was in error in holding the annuity taxable; and the relator is entitled to the refund of taxes erroneously paid in the period referred to in the petition. The determination should be annulled with fifty dollars costs and disbursements. Hinman, Acting P. J., Davis, Whitmyer, Hill and Hasbrouek, JJ., concur. Determination annulled, with fifty dollars costs and disbursements.  