
    John Bowe, as Treasurer of Albany County, Plaintiff, v. Peter D. McNab et al., as Executors, Defendants.
    (Supreme Court, Albany Trial Term,
    June, 1896.)
    Taxes — Assessment — Executors.
    An assessment against executors- for personal property held and controlled by a trustee in another county under a conveyance from the testator, which provides for its distribution in accordance with the terms of his will, Is without jurisdiction and- void.
    Action to recover the amount of a tax upon personal property claimed to he held by defendants as executors of oné John Gumming, deceased.
    John Gumming died May 13, 1893, leaving a last will and testament in which the defendants were named as executors. 'On the 11th of December, 1891, the testator made and' executed a trust deed to Charles E. Robertson, of the city of Brooklyn, in which he conveyed all his personal projierty and personal securities in trust to ear.e for and manage the same, and upon his death to transfer and deliver the several securities, stocks, bonds and obligations and cash in his hands to the persons entitled thereto under-testator’s will, which deed was recorded in Albany county and was subsequently adjudged to he valid. It appeared that said trustee had paid a previous tax on the property. •
    Mark Cohn, for plaintiff,
    Rieck & Wachsman, for defendants.
   Edwabds, J.

The jurisdiction of the assessors to make the assessment in question depended upon the existence of two facts: the residence of the defendants in the ward when the assessment-was made, and their possession or control, as executors, of personal property of their testator. The concurrence of these facts was essential to make them “ taxable inhabitants.” 1 E. 8. 389, § 5, Laws of 1850, chap. 86, § 53. The latter of these jurisdictional facts did not exist. Since the death of the testator the legal title to the property has been vested in a trustee, residing in Kings county, who has had possession and control. I am of opinion, therefore, that the assessment is void, and the defendants are entitled to judgment, with costs.

Ordered accordingly.  