
    In the Matter of the Appraisal under the Taxable Transfer Act of the Estate of Charles H. Buckingham, Deceased. Otto Kelsey, as Comptroller of the State of New York, Appellant; Elizabeth Buckingham, as Executrix of and Legatee under the Will of Charles H. Buckingham, Deceased, Respondent.
    
      Transfer tax—imposition thereof upon a fund transferred under a power of appointment created and exercised by will—it is proper although a tax has previously been paid upon the entire fund when only a life estate therein should have been taxed—the fund is considered to have been the property of the testator exercising the power of appointment.
    
    Stephen M. Buckingham died in 1887, leaving a will, by which he created two trusts, one in a fund oi 130,000 and the other in one-eighth of his residuary estate, and directed tha' the net income of the two trust funds should be paid to Charles Henry Buckingham for life, and that on the latter’s death the principal of the fund should he paid over to the surviving issue of the said Charles Henry Buckingham, and that in default of such issue the principal should be paid over to such persons as Charles Henry Buckingham should, by his last will and testament, or other lawful instrument of appointment in writing, appoint and direct.
    In 1888 and in 1889, under the Collateral Inheritance Tax Law, which was then in force, the trust funds created for the benefit of the said Charles Henry Buckingham were taxed as though he was the absolute owner of said trust funds, and not a mere life tenant therein. No proceedings were ever instituted to recover the amount of the overpayment. At the time of the payment. appointees of a fund created by will were not subject to an inheritance tax.
    
      In 1904 Charles Henry Buckingham died without issue, leaving a will, by which, lie exercised the power of appointment in favor of his wife, Elizabeth Buckingham, who was not mentioned inxany capacity in the will of Stephen M. ■ Bucking-ham.
    
      Held, that the payments made in 1888 and 1889 upon the entiré amount of the-trust funds- did not inure to the benefit of Charles Henry Buckingham’s appointee, and that such appointee should be required to pay a transfer tax upon the value of the property which she had acquired by the appointment;
    That the transfer tax must be regarded as. imposed upon a transfer created by the will of Charles Henry Buckingham as though the fund belonged absolutely to him and had been bequeathed to his wife by his will.
    Appeal by Otto Kelsey, as Comptroller of the. State of New York, from an order of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 2d day of December, 1904, affirming an order entered in said court on the 12th day -of Noveihber, 1904, fixing the transfer' tax upon the estate of Charles IT. Buckingham, deceased.
    
      Joseph Morschauser [Wilfrid H. Sherrill with him on the brief], for the appellant.
    
      Charles F. Cossum, for the respondent.
   Hirschberg, P. J.:

The circumstances disclosed in the record are peculiar, and no case directly in point has been found. The proceedings are instituted in the administration of the estate of Charles H. Buckingham, who died, in Dutchess county May 12, 1904, leaving a will which was admitted to probate June 7, 1904. In the will he exercised in favor of his wife, Elizabeth Buckingham, a power of appointment conferred upon him by the will of his uncle, Stephen M. Buckingham, who died in Dutchess- county December 1, 1887, and whose will was admitted to probate January 17, 1888. Elizabeth Buckingham was not a legatee or devisee under the will of Stephen M. Buckingham, nor was she named therein either as executrix or otherwise. The decedent, Charles IT. Buckingham, left no suiwiving issue. The appointment transfers a fund of the present value of $85,477.59, resulting from two trusts, one specific and. one residuary, created by the will of Stephen M. Buckingham for the benefit of Charles H. Buckingham during life, with remainder to his cbildven and other lawful lineal issue, and with the power of appointment referred to in default of issue.

The provisions for the trusts so created by the will óf Stephen M. Buckingham are contained in the 4th and 5th clauses of the will, and, so far as material to the present controversy, are as follows :

Fourth. * * * In addition to the foregoing bequest to my nephew, Charles Henry Buckingham, I' give and bequeath to the United States Trust Company, of New York, thirty thousand dollars (|30,000), in trust to invest, and from time to time to reinvest the same, in such securities and in such manner as it shall elect, in this State or elsewhere, as it shall elect, and to collect and receive the income thereof, and to pay the same over, as and when collected, less its proper, reasonable, and lawful compensation and commissions, to my said nephew, Charles Henry Buckingham, during the whole term of his natural life, for his sole use and benefit, and, after his death, to pay over the principal of such trust fund to the children of my said nephew, and his other lawful lineal issue, then surviving him, in equal shares, per stirpes and not per capita, for their sole and absolute use, ownership, and enjoyment forever; or, in default of such issue, to pay and deliver the principal of such trust fund to such person or persons, or other appointee or appointees, and in such manner, and in such shares, as my said nephew, Charles Henry Buckingham, shall, by his last will and testament, or other lawful instrument of appointment, in writing, appoint and direct. * * *
“Fifth. All the residue of,my estate, real and personal, I direct my Executors and Executrix to divide into four equal parts. * * One part I give, devise and bequeath to the United States Trust Company of New York, in trust for my nephew, Charles, Henry Buckingham, and my niece, Martha Williams Buckingham Wood, both aforesaid, in equal shares, upon the same trusts and conditions specified in the fourth clause of this Will in respect to the trusts therein created for them respectively.”

In the 4th clause of the will of Stephen M. Buckingham a bequest was made to the United States Trust Company of New York in trust for the benefit of the testator’s niece, Martha Williams Buckingham Wood, of the same amount and upon the same conditions as the trust specified in that clause .of the will for the benefit of the testator’s nephew.

In the year 1888 proceedings were taken under the Collateral Inheritance Law (Laws of 1885, chap. 483, as amd. by Laws of 1887, chap. 713) then in force to fix the tax to be paid upon the specific trust created for the benefit of Charles H.'Buckingham, and the legacy to him was taxed at the rate of five per cent upon the principal sum of $30,000, notwithstanding the fact that his interest was only that of a life tenant. On the settlement of the estate of Stephen M. Buckingham in March, 1889, the principal of the residuary share bequeathed for the benefit of Charles H. Buckingham as lifé tenant amounted to $36,003.24, and that sum was also then taxed at five per cent, irrespective of his limited interest therein. Both assessments, amounting together to $3,300.16, were paid when levied respectively. The value, however, of Charles H. Buckingham’s life interest in the two trust funds was only $42,187, the tax on which would have been $2,109.35. The transfer tax now chargeable upon.the.principal of the two trust funds as against Elizabeth Buckingham at one per cent amounts to $854.77, which added to the $2,109.35 makes a total of $2,964.12. It follows that the State has actually received. $336.04 more than it would have received had the taxation been limited, in 1888 and 1889 to the value of the life estate, without including either the interests limited by way of remainder or the contingent possibility of interests to be created by virtue of the power of appointment on failure of the remainders to take effect because of the absence of issue of the life beneficiary.

In order to relieve the estate of Charles H. Buckingham' from the possible injustice of an additional tax on the transfer effected by the exercise of the power of appointment, the learned surrogate has determined that the rights now passing under the appointment have- already in fact been taxed in advance by the proceedings instituted in 1888 and upon the judicial settlement of Stephen M. Buckingham’s estate in 1889, and he has accordingly adjudged that the fund in question is exempt from further transfer taxation. The result of his decision may be just and equitable, but the decision cannot be upheld unless it rests upon a sound legal basis. The process of taxation is statutory, and in a sense arbitrary. -In its essence taxation is forcible rather than equitable. The State reaches out its hand and takes a part of the property of the citizen, and the citizen yields to the spoliation because of the powerful protection which he receives in return. The courts can only see that the process is equitably enforced in the sense that all citizens are treated alike under the operation of equal laws, and that equal remedies are afforded for the redress of inequality or injustice. But the failure of a citizen to remedy a wrong, where a remedy is given for the wrong, cannot justify the perpetration of a subsequent wrong. If A is overtaxed that fact cannot relieve B from taxation; and if the estate of Stephen M. Buckingham is overtaxed that fact cannot relieve the estate of Charles H. Buckingham from taxation, notwithstanding that Charles II. may have acquired all his property by will from Stephen M., and by reason of that circumstance a burden may be imposed greater than would have been sustained had the previous assessment been free from error. It may be conceded that it was error to tax in 1888 and 1889 the entire principal of the trusts, thus including the remainder interests created by the will of Stephen M. Buckingham, but it was an error which was acquiesced in at the time by all the parties concerned, and which has been acquiesced in by them for.more than sixteen years. The error has been perpetuated, in part at least, by the indifference of those who might have cured it. The money then erroneously overpaid to the State could have been recovered back by the proceedings provided for in the Inheritance Tax Law, and within the period allowed by the provisions of that law for that purpose. (See Laws of 1885, chap. 483, § 12, as amd. by Laws of 1887, chap. 713; see, also, Laws of 1892, chap. 399, § 6.) That period, however, has long since expired, as has also the period prescribed by the Code of Civil Procedure (§§ 380, 382) for the commencement of a civil action to. recover back money erroneously or illegally collected; and the money so erroneously overpaid to the State is, therefore, not only beyond the reach of litigation, but it is also beyond the power of voluntary relinquishment on the part of the State. In Matter of Hoople (179 N. Y. 308) it was held that the right to a refund of the amount of a transfer tax illegally assessed upon property exempt from taxation is not a vested right but a mere privilege, the extent and duration of which- depend entirely upon the language of the statute conferring it; and that ■while the time' within which it may be prosecuted may be restricted, or, if not violative of the Constitution, may be enlarged, yet if the. claim as between citizens would be barred by lapse of time, under section 6 of article 7- of the Constitution, neither the State- nor any of its representatives can-audit, allow or pay it.

The proceedings by which the inheritance taxes were collected in 1888 and 1889.do not appear to have been instituted by the State, and there is nothing in the record to indicate that they had any relation whatever to the possibility of an appointment by Charles H. Buckingham under his uncle’s will. It is impossible, therefore, to hold as a matter of fact that these , taxes were levied in advance upon the interest to which Elizabeth Buckingham now succeeds. It might, indeed, be possible to regard those levies as made in advance upon the remainders created by the will of Stephen M. Buckingham, which remainders finally failed because of the absence of issue of his nephew, but they cannot be regarded as assessments in advance upon the right of Charles H. Buckingham’s appointee to take in succession, because such a right was not made taxable until eight years afterwards, viz., iii the year 1897. It cannot be assumed that the taxing power anticipated the law as well'as the future assessment. By chapter 284 of the Laws of 1897, section 220 of the Tax Law. (Laws of 1896, chap. 908) was amended by the insertion, among other subdivisions, of subdivision 5, which provided that “ whenever - any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this act, such appointment when made shall be deemed a transfer taxable under the provisions of this act. in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed .or devised by such donee by will.” In Matter of Vanderbilt (50 App. Div. 246; affd., 163 N. Y. 597) it was held that the ultimate right of succession to a fund given by the exercise of a power of appointment was not taxable prior to the amendment of 1897. ■ In Matter of Stewart (131 N. Y. 274) it was held, it is true, that under the Collateral Inheritance Law of 1885 (Laws of 1885, chap. 483) the succession to property which passed to the appointee was taxable under the will creating the power, upon the theory that the appointee took it under that will, but that case arose before the amendment of 1897. That that amendment creating a tax upon the appointment when made, as a transfer then made, was a new provision of law which did not exist theretofore, was distinctly stated in Matter of Harbeck (161 N. ,Y. 211, 217). Chief Judge Parker said: “ The decision of this' court in Matter of Miller (110 N. Y. 216) is authority for the proposition that the act of 1897 is entitled to consideration at the hands of the court, as a legislative declaration that the subject-matter of the new provisions did not prior thereto constitute a part of the law. In that case, the question was whether a legacy to an adopted child was taxable, the tax' having been imposed in 1886, under the law as it then stood. But the Legislature having a year later passed an act expressly exempting adopted children, this court, in determining whether the legacy was taxable under the law as it stood in 1886, said: Moreover, the fact that such provision was made by the statute of 1887 (Ch. 713), and the act of 1885 amended accordingly, must be regarded as a legislative declaration that the law did not, as originally passed, embrace the provisions which the later act supplies.’ The legislative declaration in this case, for ■ it amounts to that at least, seems well founded,” etc.

In Matter of Dows (167 N. Y. 227) it was held that the tax imposed by the amendment in question is a tax on the right of succession and not upon the property, and that in fact and substance it is- the execution and not the creation of the power which passes the property to the appointees. Judge Cullen said (p. 231): “ The decision in Matter of Harbeck (supra) proceeded on the ground that at the time of the exercise of the power of appointment in that case the Legislature had not provided for the taxation of transfers under such powers. But whatever be the technical source of title of a grantee under a power of appointment, it cannot be denied that in reality and substance it is the execution of the power that gives to the grantee the property passing under it.”

In Matter of Delano (176 N. Y. 486) the power of appointment was created by a deed which was executed prior to the passage of any statute imposing a tax upon the right of succession to the property of a decedent. The court held that the amendment of 1897 laid no tax upon the property or on the original disposition of it by deed, but simply upon the exercise of the power by will as an effective transfer for the purposes of'the act; that since the Legislature has full and complete control of the making; the form and the • substance of wills, it can impose a charge or tax for doing anything by will; that the fact’ that 'there was no statute imposing a succession tax when the original disposition of the property was made and the power was created is immaterial; that that transfer, is not taxed and the statute makes no effort to reach it.; but that the practical transfer through the exercise of the power by will is taxed, and nothing else. ■ ■

In Matter of Walworth. (66 App. Div. 171) it was held by ■the Appellate Division in the third department that the amendment of 1897 was ■ designed to change the rule announced by the Court of Appeals prior to the passage of the amendment in Matter of Harbeck (supra), and in many other cases, to the effect that the appointees take hy virtue of the will creating the power, and not by virtue of the will under, which the power, is exercised. And in Matter of Howe (86 App. Div. 286; affd., 176 N. Y. 570) this court held that the transfer which the amended statute makes taxable is the exercise of the power of appointment, and not the creation of the power, and that, consequently, the fund affected by the power is not taxable until the time arrives for the exercise of the testamentary power of appointment conferred, upon the life beneficiary. .

It follows that the transfer tax which is sought to be imposed in these proceedings must be regarded as imposed’ upon a transfer created by the will of Charles H. Buckingham, and not by the will of Stephen M. Buckingham; that at the time of the settlement of the ..estate of Stephen M. Buckingham there was no law in existence authorizing the imposition of such a tax; that the imposition of such a tax was not anticipated in fact, and could not have been anticipated in the proceedings’by which the-inheritance taxes were adjusted and collected in the estate of Stephen M. Buckingham; and that the right of Elizabeth Buckingham to succeed to the fund in question is taxable as a transfer effected by the operation of her husband’s will with the ■ like effect as though such, fund belonged absolutely to him and had been bequeathed’to her in and by his will.

The order of the surrogate, affirming his prior order should be reversed, with $10 costs and disbursements, and the prior order entered November 12, 1904, should be modified by striking out the provision which adjudges that the fund of $85,477.59 passing to Elizabeth Buckingham as appointee under the will of the decedent has fully paid the transfer tax and is exempt from further transfer taxation, and by inserting a provision fixing the transfer tax on such fund at the sum of $854.77.

Bartlett, Woodward, Jenks and Miller, JJ., concurred.

Order of the surrogate of Dutchess county affirming a prior order in transfer tax proceedings reversed, with ten dollars costs and disbursements, and prior order modified in accordance with opinion of Hirschberg, P. J.  