
    In the Matter of the Transfer Tax upon the Estate of Charles A. Shearson, Deceased. Edward Shearson, as Executor, Appellant; The Comptroller of the State of New York, Respondent.
    
      Matter of Shearson (Estate), 174 App. Div. 866, affirmed.
    (Argued January 10, 1917;
    decided January 30, 1917.)
    Appeal from an ordet of the Appellate Division of the Supreme Court in the first judicial department, entered June 23, 1916, which affirmed an order of the New York County Surrogate’s Court assessing a transfer tax upon the estate of Charles A. Shearson, deceased. Testator by his will provided: “ All the rest, residue and remainder of my property and estate, real and personal, of every kind and nature whatsoever and .wheresoever situate, I give, devise and bequeath to my wife, Jessie McC. Shearson, for her use and enjoyment so long as she may live; and upon her death all the said rest, residue and remainder of my estate shall go to my adopted child, Charles Arrindell Shearson, his heirs and assigns forever; provided, however, if the said Charles Arrindell Shear-son shall die without issue surviving him, or leaving issue who shall die before my wife, Jessie McC. Shear-son, then the said rest, residue and remainder of my estate shall go to my heirs and next of kin; provided, further, however, that if the said Charles Arrindell Shearson dies after my wife, Jessie McC. Shearson, and under the age of 21 years, and without issue surviving him, then the said rest, residue and remainder of my estate shall go to my heirs and next of kin. ” The surrogate taxed the remainder above provided for five per cent. The appellant contended that the tax should be but one per cent.
    
      Charles Mac Veagh and Russell S. Coutant for appellant.
    
      Schuyler C. Carlton and Lafayette B. Gleason for respondent.
   Order affirmed, with costs; no opinion.

Concur: His'cook, Oh. J., Chase, Collin, Cuddeback, Hogan, Cardozo and Pound, JJ.  