
    Matter of the Estate of Robert Graham Dun, Deceased.
    (Surrogate’s Court, New York County,
    April, 1903.)
    Transfer tax — Good-will taxable.
    The Court of Appeals having held that the definition applicable to “ property ”, as that word is used in the Tax Law (L. 1896, ch. 90S, art X), is contained in section 242 thereof and there declared to “ include all property or interest therein ”, and the Statutory Construction Law (L. 1892, ch. 677, § 4) having defined “ personal property” as including “ everything, except real property, which may be the subject of ownership ”, the good-will of the business of a firm is taxable for the transfer tax where the decedent was the sole owner of the firm and his will transferred the business.
    Appeal from an order assessing and fixing the transfer tax.
    Julius Offenbach, for State Comptroller.
    Rastus S. Ransom, for executors.
   Thomas, S.

The decedent was, at the time of his death, engaged in carrying on business under the firm name of R. G. Dun & Co. The appraiser designated under the Tax Law included in his appraisal the “ good-will of the business of the firm of R. G. Dun & Company, $2,000,000,” and the tax was fixed, on this basis by an order of a surrogate. The executor appealed from that order. In my previous memorandum (39 Misc. Rep., 617) I stated that, upon the authority of the decision of the Appellate Division in this department in Matter of Hellman (77 App. Div., 355), the definition of “personal estate ” or “ personal property” contained in subdivision 4 of section 2 of the Tax Law must control, and I therefore determined that the goodwill of the business was improperly included in the appraisal.

An appeal to the Court of Appeals was then pending, and both of the parties to the proceeding deemed it expedient to defer the making of any order on my decision. The Court of Appeals has now reversed the ruling of the Appellate Division in Matter of Hellman, 174 N. Y. 254, holding that the definition of “property” applicable to article X of the Tax Law, concerning taxable transfers, is that contained in section 242 in article X of the law, as follows: “ The words ‘ estate ’ and ‘property/ as used in this article, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred * * * and shall include all property or interest therein, whether situated within or without this State.”

As defined by the Statutory Construction Law (L. 1892, chap. 677, § 4), the term “ personal property ” includes “everything, except real property, which may be the subject of ownership ” (Matter of Jones, 172 N. Y., 575, 585).

The good-will of the business of the decedent is a right, exclusive in him and in those to whom he has given it by his will) to continue that business under the name used by him. It is clearly a thing capable of being the subject of ownership, and it is stipulated to have a large value. It is, therefore, property; its value was properly included in the appraisal, and the order appealed from must, in this respect, be affirmed.

The omission to tax the remainder interests was, under Matter of Vanderbilt (172 N. Y., 69) and Matter of Brez (id., 609), reported subsequent to the order, erroneous. The order will, as to this, be reversed, and the tax will be imposed on such remainders pursuant to the supplemental report of the appraiser made pending this appeal.

Order affirmed in respect to good will and reversed as to remainder interests.  