
    Matter of the Transfer Tax on the Estate of Nathan M. Hallock, Deceased.
    
      (Surrogate’s Court, Orange County,
    
    
      January, 1904.)
    Transfer Tax—The Values of Both the Real and the Personal Property of a Deceased Must be Added Together in Determining an Exemption.
    A brother devised and bequeathed to his sister real estate of the value of $6,500 and personal property of a value greater than $10,000. The excess of the personal property over $10,000 was taxed at one per cent.
    
      Held, that under sections 220 and 221 of the Tax Law the real estate also was taxable at one per cent.
    That the contention of the executors that the real property was exempt because of a value less than $10,000 was unsound and this because the values of both the real and the personal property must be added together in order to determine whether the sister was within the exemption afforded by section 221 when “ real or personal property or any beneficial interest therein of a value less than ten thousand dollars passes by such transfer to the use ” of a sister.
    Proceedings upon assessing ‘and fixing the transfer tax.
    Finn & Finn, for executors; Henry W. Wiggins, for State Comptroller.
   Howell, S.

Nathan M. Hallock died March 21, 1903. He gave by his will to his sister, Ella H. Worcester, personal property of the value of more than $10,000. He also devised to her real estate of the value of $6,500.

The question presented for consideration is whether the real estate so given to the sister is liable to the transfer tax. The question arises under the amendment of 1903 to section 221 of the Transfer Tax Act, which section now reads as follows: When real or personal property, or any beneficial interest therein, of a value of less than ten thousand dollars passes by such transfer to the use of any father, mother, child, brother or sister; * * such transfer shall not be taxable under this act. If real or personal property, or any beneficial interest therein, so transferred, is of the value of ten thousand dollars or more, it shall be taxable at the rate of one per centum.”

It is contended by the State Comptroller that under this section the value of the real estate and of the personal property shall be added, and if such value exceeds $10,000 the amount is taxable .at the rate of one per cent.

On the part of the estate of Mr. Hallock, it is claimed that if personal property passes to the persons named in the value of $10,000 or more, then it is subject to the tax; that if real property of the value of $10,000 or more passes to those named, then it is subject to the tax, but that the values of the real and personal property are not to be added together, and that each must be excluded from the other in determining the amount.

Section 220 of the Transfer Tax Act imposes the tax in this ease. It reads as follows: “ A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, * * * when the transfer is by will or by the intestate laws of this State,” etc., etc. This is the section which imposes the tax. Section 221 provides for certain exemptions and fixes the rate. It has been generally held that both real and personal property are taken into account under section 220 in ascertaining the value of the property; that is, the values of the two kinds of property are added. I think the words real or personal ” in section 221 are to be construed in the same way. It is the intention of the law to impose the tax on the property real or personal; ” that is to say, “ of whatever kind ” or “ without regard to its character.”

We are, therefore, to find the value of the property whether it be real or personal, so that if it be part real and part personal, we must add the value of the real to the value of the personal, to ascertain whether or not the same exceed $10,000, when going to a sister, and if it does so exceed $10,000 in value it is taxable at the rate of one per cent.

It follows, therefore, in this case, that the $6,500' in value o± the real estate transferred by the will of the testator to his sister is taxable at the rate of one per cent.

An order having heretofore been made fixing the tax upon the personal property, and reserving the question as to whether or not the real property is taxable, an order will now be entered fixing the tax at the rate of one per cent, upon the value of the real estate.

Decreed accordingly.  