
    Matter of the Appraisal of the Transfer Tax on the Estate of Anna L. Plum, Deceased.
    (Surrogate’s Court, Rensselaer County,
    March, 1902.)
    Transfer tax — Taxation of life estate — Remainder not presently taxable where there is no present gift of it.
    The will of a testatrix, who died June 16, 1899, devised her residuary estate to her executors in trust to invest the same and pay the income to her sister Mercy so long as Mercy, lived and remained unmarried and upon her marriage or death unmarried to pay the corpus equally to the brother of tne testatrix, her sister Sarah and Mercy if living. The testatrix further provided that if her brother or either of her sisters should then have died not having issue the executors should pay and divide the corpus to the survivor or survivors of them and those who left issue equally per stirpes, and, further, that if her brother or her sister Sarah should then have died leaving issue the share of the one dying should be paid to the issue per stirpes. Children of Sarah were living when the testatrix died.
    Held that, under L. 1896, ch. 908, § 230, Mercy was taxable on the value of an estate for her life in the personalty although she might marry and thus cut her life estate down to an estate for years.
    That the will made no present gift of the remainder to any one, except such as might be inferred from a direction to pay and divide In the future, and that therefore there was no present transfer and could be no present tax.
    That the transfer tax was laid only upon that succession which takes place upon the death of a decedent and was not laid upon transfers which might take place in the future under the terms of his or her will.
    That L. 1899, ch. 76, amending said section 230, was not applicable to a case like the present where it could not be known at the time of taxation who would ultimately be entitled to the residuary estate.
    
      Appeal by the State Comptroller from the report of the transfer tax appraiser and order entered thereon.
    . Jarvis P. O’Brien, for State Comptroller.
    Francis FT. Mann and Calvin S. MeChesney, for James R. Plum.
   Heaton, S.

This is an appeal by the State Comptroller from the report of the transfer tax appraiser and order entered thereon, dated August 21, 1899, which taxed a life estate against Mercy M. Plum, and decided as to the estate in remainder as follows: “ To whom the reversionary estate is payable and the value thereof is not ascertainable until the death or remarriage of Mercy M. Plum.”

The Comptroller appeals on two grounds: First, that the estate has been undervalued, and second that the appraiser has failed to tax the estate in remainder.

The value of the personal estate has been settled by the Comptroller and executors by stipulating that it is $171,504.27. The appraiser finds that it is liable to deduction for debts and expenses of $9,322.96, and that there are general legacies amounting to $36,000.

There remains for consideration only the question of the proper taxation of the balance of this personal estate.

Anna L. Plum died June 16, 1899, leaving a will which was duly probated in this county June 20, 1899, and which after making several substantial bequests provided as follows: “ Eighth. I give, devise and bequeath all the rest, residue and remainder of my estate real and personal whatsoever and wheresoever situate, unto my executors and executrices hereinafter named, or that one of them who shall qualify, for and during such time as my sister, Mercy M. Plum, shall live and remain unmarried, in trust nevertheless to invest the same and keep the same invested, and to collect and receive the rents, income and profits thereof, and to pay and apply the same as soon as received, to and for the use of my said sister, Mercy M. Plum, and on the marriage or on the decease unmarried of my said sister, Mercy M. Plum, to pay the said rest, residue and remainder of my estate to my said brother, James R. Plum, and my sisters, Sarah W. Gilbert and Mercy M. Plum, if my said sister Mercy M. Plum, shall then be living, equally share and. share alike. If either of my said brothers or sisters shall then have died not having issue, to pay and divide the said rest and residue to the survivors or survivor of my said brother and sisters and the issue of any who shall have died leaving issue, equally share and share alike, per stirpes and not per capita. If either the said James R. Plum or Sarah W. Gilbert shall then have died leaving issue the share which would have'been paid to the one so dying, if then surviving, shall be paid to such issue equally, share and share alike, per stirpes and not per capita.”

Mercy M. Plum is properly taxable on an estate for life although by her ora act she may marry and thus cut down her life estate to one for a term of years only.

Section 230 of the Tax Law provides as follows: “Where an estate for life or for years can be divested by the act or omission of the legatee or devisee it shall he taxed as if there were no possibility of such divesting.”

The present value of the life estate of Mercy M. Plum in the balance of said personal estate should be ascertained and taxed upon the basis of the corrected valuation as stipulated by the parties to this appeal.

' The question as to whether or not the remainder of the personal estate is now taxable, and if so against whom, is made a difficult one owing to the frequent changes in the statutes and to the decisions which have from time to time construed them.

Anna L. Plum died June 16, 1899, and therefore chapter 76, Laws of 1899, amending the Tax Law was in force at the time of her death. The Comptroller claims that-by the provisions of that act the remainder of the personal estate should be taxed against the nephews-and nieces of the testatrix, children in being of the said Sarah W. Gilbert, at the rate of 5 per cent., in accordance with the language of that act, now part of section 230 of the Tax Law, which reads as follows: “ Where property is transferred in trust or otherwise, and the rights, interests or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed on said transfer at the highest rate which, on the happening of any of said contingencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith by the executors or trustees out of the property so transferred.”

The report of the appraiser does not show that there were living at the death of the testatrix any children of James R. Plum or Sarah W. Gilbert, but it will be assumed as was admitted on the argument that there were living at the death of testatrix nephews and nieces of testatrix, children of Sarah W. Gilbert.

It is true that in the event of the death of Sarah W. Gilbert, before the marriage of Mercy M. Plum, her surviving children would take or share in the residuary estate. That fact, however, is not the controlling one in arriving at a decision as to whether or not the residuary estate is now taxable, and if so against whom. James R. Plum might also die leaving children whose names and number would be unknown. The children of Sarah may not survive that period and there may be no nephews or nieces of testatrix when the estate of Mercy shall terminate. The Act of 1899 does not mean that any and every person ivho may at some future time come into possession of the residuary estate shall be taxed upon the death of testatrix, even if some of such persons are then living. The tax is upon the transfer of the property, upon the right of succession, not upon the property itself. Matter of Seaman, 147 N. Y. 69; Matter of Sloane, 154 id. 109.

The tax in the first instance is assessed only upon the transfer or right of succession which takes place upon the death of the testatrix, not upon a future transfer or right of succession which may be provided for in the will.

“ Transfer ” means the present passing of property without regard to whether the actual possession and enjoyment follows immediately or comes at some future time. Matter of Hoffman, 143 N. Y. 331. The word “ transfer ” as used in the tax law has its ordinary signification and means the handing over or parting with property with intent to pass it or certain rights in it, to another who becomes the transferee. Matter of Gould, 156 N. Y. 428.

Much confusion has apparently arisen because it has not always been borne in mind that the transfer taxed at the death of the testator is only the transfer which occurs at his death, not a future transfer which may take place, and because the present transferee with future enjoyment and the future possible transferee, often unknown, have not always been clearly distinguished.

Bearing in mind then that the transfer tax assessable at the death of Anna Plum is a tax upon the transfer which then took place and must be only against the persons in being who were transferees of such property at that time, let us consider the contention of the Comptroller who says that a tax of 5 per cent, on the residuum of ihe estate ought to be assessed as against nephews and nieces.

If the will of testatrix transferred to her living nephews and nieces any property at her death then they are liable to the State of Hew York for the transfer tax.

The first question to be determined then is whether or not the will of Anna L. Plum transferred property at her death to any person, and if so to whom. Let us examine the will. The gift of the ■residuary estate is to the executors in trust to invest the property and to pay and apply the income to the use of Mercy M. Plum until her marriage or death, and then to pay such rest, residue and remainder, if Mercy manned, to herself and James and Sarah, but if Mercy fails to marry then upon her death to pay said residue to James and Sarah unless in either case either James or Sarah or both shall then have died, in which event she directs that the same shall be paid and divided to the survivor or survivors and the issue of any one who shall have died leaving issue, the share of either who shall then have died leaving issue to be paid per stirpes and not per capita.

It is clear that there is no direct gift of the principal but instead a direction to pay and divide. Where the only words of gift are ■found in the direction to pay or divide at a future time the gift is future, not immediate, contingent and not vested. Matter of Crane, 164 N. Y. 71. Where a future interest is devised not directly to a given person but indirectly through the exercise of a power conferred upon a trustee the devise is designated to be contingent, and survivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift. Matter of Baer, 147 N. Y. 348.

The rule that where there is a bequest to one person absolutely and in case of his death without issue to another the contingency referred to is a death in the lifetime of the testator, has only a limited operation and cannot be extended to a case where a point of time is mentioned other than the death of the testator to which the contingency can be referred or to a case where a life estate intervenes or where the context of the will contains language evincing a contrary intent. Matter of Denton, 137 N. Y. 428.

It seems to be clear then that there is no present transfer of this residuary estate which has vested in any known transferee so that such transfer and succession is subject to tax unless the transfer tax law makes estates of the kind created by this will presently taxable.

In Matter of Hoffman Estate, 143 N. Y. 327, it was held that mere possibilities or chances of the acquisition of property, including not only contingent estates but also estates technically vested but liable to be divested were not liable to taxation until the contingencies had passed or been fulfilled and the right to succeed to property had become certain and absolute.

In Matter of Pullis Estate, 60 App. Div. 286, it was said that the course of the decisions had changed the rule applicable to the taxable status of estates by which technically vested remainders were taxed, and that now it is the weight of authority that beneficiaries are not now taxable until they have a fixed and absolute right of enjoyment and until events make it certain that there is an actual and beneficial transfer of property to them. Citing Hoffman Estate, supra; Matter of Roosevelt, 143 N. Y. 120; Matter of Curtis, 142 id. 219.

In Matter of Howell, 34 Misc. Rep. 432, the will gave the remainder to the executors in trust to apply the income to the use of the widow for life, upon her death to divide the trust fund into as many shares as he then had children and to apply the income of such shares to the use of such children during their lives, and upon the death of either to pay over and transfer the fund to the child’s appointee or if no appointment was made to the issue of such child, and if none to the survivors. At testator’s death -a tax was fixed upon the life estate of the widow and upon the life estate of the children who survived testator, but the remainder over was not taxed. The Comptroller appealed, contending that the remainder over should have been taxed. His contention was not sustained. Surrogate Thomas said as to the remainder over: “ The difficulty is that no transfer of the untaxed remainder interests has been effected. A method by which ultimate ownership of those interests may be determined has been indicated; a transfer has been initiated which will eventually be consummated in one of its several possible forms, but the title to the property after the expiration of the life estates of the widow and the four children of the testator has not yet been transferred to or vested in any person whomsoever.”

It appearing then that there is no gift of the residuary estate in the Plum will except as implied from the direction to pay and divide and that only such transfers are presently taxable as are actual present transfers to known transferees who take more than a technically vested estate, it is quite clear that the appraiser cannot at the present time fix a tax upon any particular or certain transfer against any transferee ascertainable at the present-time.

The only remaining authority for the taxation of this residuary-estate must be found in the amendment to section 230 of the Tax Law passed in 1899. The effect of this amendment has been recently passed upon adversely to the contention of the Comptroller,, in Matter of Vanderbilt, 68 App. Div. 27. It is there held that future interests created in such a manner that the tax upon the transfer could not be immediately paid without in a measure depleting the life estate would impose a tax upon property and not upon the transfer, and that the provisions of the amendment are-ineffectual to change the nature of the transfer tax.

The report of the appraiser and the order made thereon are therefore affirmed, so far as they decide that Mercy M. Plum is taxable upon a life estate, and as to the remainder of the estate that the same is not at present taxable. But as the parties have stipulated upon a substantial change in the valuation of the estate which will necessitate a new computation of the present value of the life estate the matter is remitted to the appraiser for further action in accordance with the stipulation.

Report of appraiser and order made thereon affirmed, so far as they decide that Mercy M. Plum is taxable upon a life estate and as to remainder of estate, that same is not at present taxable.  