
    In the Matter of the Transfer Tax upon the Estate of Sarah J. G. Spencer, Deceased. The Comptroller of the State of New York, Appellant; Charles G. Spencer and Others, Respondents.
    Appeal from an order of the Surrogate’s Court of the county of New York reversing a prior order assessing a tax and remitting report of appraiser ■ for. further consideration. ' . ,
    
      Order affirmed, with costs and disbursements, om the opinion of the surrogate. Present — Patterson, P. J., Ingraham, McLaughlin, Clarke and Lambert,. JJ.
   The following is the opinion of the surrogate:

Thomas,

Surrogate:. The vital distinction mad!» by the Court of Appeals in ■Matter of Cooksey (182 N. Y. 92) and Matter of Lansing (Id. 238); argued on the same day before that'court, is based Upon the difference existing in the two wills . - of the.several donors of the-powers. In 'the will in Matter of Oooksey, the remainder of the trust estate created for the benefit of the donee Of the power .was directed'-to pass to or vest in the children of ;.the- donee of the power-upon her death as she by her. “last will and testament shall designate and appoint . and in such manner and upon such terms'as he or she may legally impose.” The only alternative provision was that “ ini case such person dies intestate ” the said . trust fund should “vest'absolutely and at once ” in the surviving children,'share and share alike,.of the donee of the power. Under this will it was necessary, in order that, the "children of the donee of the power should take, either that there should be an exercise of the power, or that the donee- of the power should die intestate. Her children had no title except under the execution of the power; i and the transfers to them were, therefore, held .taxable. In the Lansing case ■ there was a direct devise and bequest contained- in the; will of the donor of the power, by which the corpus of the trust fund was^ given “to her heirs at.law, subject, however, to the power óf such child to devise hereinafter contained.” Under this will Yann, J., remarked: “ The execution.of the power left the title where it was before, and the result is the same as if there had been no power to exercise.” . In other words, the final beneficiaries of. the corpus of the trust prop • erty having been selected by the donor of the power, and' an explicit bequest and devise of that property having been made by tike donor of the power to such final beneficiary, subject only to a power in the donee to modify of change such bequest and devise, the tille of the remainder passed to the beneficiaries .tinder ' the will of the donor of the power, notwithstanding an attempt to exercise the power by the donee in such a way that no change whatever was effected in such original bequest and -devise, The distinction between these two cases- was pointed out by Vann, J,, in 1;82 Flew York, page 246.. In the -case before mq the will of'.the donor.of the power is substantially the same as the will in Matter ' of Lansing,-, and the .will of the donee' of the power neither adds to nor takes fromany-'of the final beneficiaries the benefits which the will of -the donee of-the power expressly conferred upon them The! order appealed from must, ■ therefore, be reversed. ... .  