
    Matter of the Transfer Tax on the Estate of Timothy B. Blackstone, Deceased.
    (Surrogate’s Court, New York County,
    July, 1901.)
    Transfer tax — Exemption of a transitory deposit of a non-resident decedent —L. 1896, ch. 908, § 220, subd. 3, amd. L. 1897, ch. 284, § 2.
    A non-resident of the State of New York, who had sold his interest in a foreign railroad company to a syndicate, for fourteen months before his death had on deposit, with a New York depositary of the syndicate stock, about $5,000,000 resulting from the sale of his own and this the depositary carried on its books merely as ,T deposits in trust ” and was paying him certain interest thereon subject to the proviso that he should not draw more than $100,000 except upon two days’ notice. In the meantime the depositor had been trying to invest the deposit but had failed to do so both because of his continuous ill health and of the magnitude of the deposit.
    Held that the deposit was not “ property within the State ” within the meaning of the Tax Law, as amended in 1897, and therefore was exempt from the transfer tax.
    Timothy B. Blackstone died on the 26th of May, 1900, in the city of Chicago, Cook county, Illinois, being a resident of and domiciled in said city. On or about March 31, 1899, the decedent deposited with the United States Trust Company of Hew York the sum of $4,881,556-72, and had on deposit $10,692.24 with firm of Cuyler, Morgan & Co., hankers of Hew York.
    Proceedings were commenced in the Surrogate’s Court of Mew York county to appraise the property of the decedent, which was subject to a tax under the act in relation to taxable transfers of property, and his property was accordingly assessed by the appraiser at the sum of $4,553,609.58.
    The grounds upon which the appeal was taken were: That the decedent was not a resident of the State of Hew York at the time of his death, and left no property in this State. That if the property of the decedent at the time of his death in the possession of the trust company and firm of Cuyler, Morgan & Co. can be deemed, for any purpose, property thus situated within the State of Yew York, such property was only transitorily within this State! That the tax upon said property had been duly assessed by the County Court of Cook county, Illinois, and paid by the appellant to the treasurer of Cook county. That this court had no jurisdiction. That the Transfer Tax Law of Yew York does not include in its operation the property owing to decedent at the time of his death by said trust company or firm.
    Respondent’s contention was that, under Laws of 1896, chap. 908, as amended by Laws of 1897, ch. 284, the deposits made by deceased and held by said trust company and firm for his account was “ property within the state,” in the meaning of the provisions quoted; also citing section 242 of the Tax Law (Laws of 1898, chap. 88), as to definition of the word “ property.”
    Edward W. Sheldon, for executor.
    Julius Offenbach, for City Comptroller.
   Fitzgerald, S.

The decedent, a non-resident, died in May, 1900, leaving nearly $5,000,000 with the United States Trust Company, and over $10,000 due him on an account with a firm of bankers in this city. The deposit with the trust company arose under the following circumstances: The decedent had been for many years the president and a large stockholder in an Illinois railroad company. . In March, 1899, an agreement was entered into for the purchase of this stock by a syndicate, which sought to obtain a controlling interest in the railroad. In pursuance of this agreement, the decedent joined with other stockholders in the sale of his shares. The trust company was made the depositary of the stock to be purchased, and was authorized, upon receiving the certificates, duly indorsed, to pay the agreed price therefor. Decedent communicated with the trust company, inquiring whether, in case he sold, he might leave the proceeds with it; that he was at a loss to know how safely to invest these proceeds, and might wish to deposit a considerable sum for several months. The trust company replied that it would receive such proceeds, hold them subject to his order and allow interest thereon at a specified rate, but if he would require more than $100,000 he should not draw upon the trust company except upon two days’ notice. These terms were acceded to, - and, on the 29th day of March, 1899, his stock certificates were delivered to the trust company, who made a book transfer of the purchase price from its accounts with the purchasing syndicate to a new account in decedent’s name, entitled deposits in trust.” Ro certificate of deposit nor pass-book was issued, and the only evidence of the deposit was this book entry and the correspondence stated, lip to the time of his death, the decedent had withdrawn about $200,000. The appellant alleges that it ivas decedent’s fixed intention to leave this balance with the trust company only temporarily and pending its investment; that, owing to his ill-health, which was continuous and progressive from the date of the deposit until his death, he was unable to carry out his intention. On several occasions he expressed disappointment at his failure, and complained that he was suffering great pecuniary loss in consequence. In Matter of Leopold, 35 Misc. Rep. 369,1 had occasion to pass upon the taxability of a deposit made under- somewhat similar circumstances, and I there held that where a decedent had deposited, three days prior to his death, a sum of money to the credit of a syndicate formed for the purchase of stock, which purchase was completed within a month succeeding his death, the property was only transitorily here and was not liable to taxation under the Transfer Tax Law. In the present case, while the property remained here for more than a year, the proof shows that the money realized upon the sale of the securities was of great magnitude; that the reason why it was not removed from the State sooner was because of the difficulties experienced in making new investments and the ill-health of the owner. I can see no difference in principle between the two cases, and, upon the authority of that case and of the cases cited in the memorandum handed down in that case, I sustain the appeal.

Appeal sustained.  