
    REBECCA BORISH, AND OTHERS, APPELLANTS, v. HOMER C. ZINK, COMMISSIONER, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 28, 1949 —
    Decided March 17, 1949.
    
      Before Judges Jacobs, Eastwood and Bigelow.
    
      Mr. W. Louis Bossle argued the cause for the appellants (Mr. Arthur L. Joseph, attorney for appellants Rebecca Borish and others; Messrs. Nor cross & Farr, attorneys for appellants David Borish and others).
    
      Mr. William A. Moore argued the cause for the respondent (Mr. Walter D. Van Riper, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The State Tax Commissioner assessed transfer inheritance taxes in respect to the several legacies contained in the will. The appellants take the position that the compromise agreement and the order of Chancery approving it superseded and destroyed the will and hence that the taxes should have been levied as though decedent died intestate.

The parties to the agreement lacked power to “destroy” the will of Mr. Borish. No one can do that. If the appeal from probate had been prosecuted to a conclusion, the probate might have been reversed and the fact established that Mr. Borish died intestate. But the appeal was dismissed and the decree of the Orphans’ Court conclusively establishes the factum of the will. Questions of interpretation are not presented by the appellants whose only contention is that the compromise agreement superseded the will. That agreement is effective only because the parties to it had the beneficial title to the estate, and so could do with it as they desired. Their title, or claim of title, some of them derived from the will; others from the statute of distributions. The will is an essential link in the chain of title. The transfers made by the will have taken effect and are taxable. In re O’Neill, 111 N. J. Eq. 378 (Buchanan, V. C., 1932).

The Court of Chancery was interested in only one feature of the compromise, namely, whether the settlement was advantageous and fair to the infants then living or who might be thereafter born. Its approval of the agreement had no effect except to bind them. The Court did not have the subject of taxes before it.

The action of the Tax Commissioner will be affirmed.  