
    In the Matter of the Transfer Tax upon the Estate of Frederica Bucki, Deceased. Comptroller of the State of New York, Appellant; Walter Loewenthal and Others, as Executors, etc., of Frederica Bucki, Deceased, Respondents.
    First Department,
    May 5, 1916.
    Tax—transfer tax — remainder vesting under power of appointment — when remainder taxed at full undiminished value — prior determination as to value not res adjudicata.
    Where a testator devised a life estate with power of appointment of the remainder, which power was exercised by the life tenant who bequeathed the property to his wife, and on the original assessment of the transfer tax it was adjudged that the tax on the remainder, stated to be of a certain value, “is suspended until the power of appointment is exercised, or the remainder vests in possession,” the remainder on the death of the life tenant should be appraised at its full undiminished value where the statute in force at the time the original testatrix died required expectant estates which are contingent to be appraised at them full undiminished value when the person entitled thereto comes into beneficial possession.
    The statement of the value of the remainder contained in the original assessment of the tax was not an adjudication, for the surrogate had no authority to pass upon the question.
    
      Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New Fork, entered in the office of said Surrogate’s Court on the 22d day of October, 1915, fixing a transfer tax upon certain remainders.
    
      Schuyler C. Carlton, for the appellant.
    
      Sydney Bernheim, for the respondents.
   Scott, J.:

Frederica Bucki, who died on November 19, 1912, by her will, gave her son, Charles Lloyd Bucki, a life estate in two-thirds of her estate, with power of appointment of the remainder. This power he exercised by his will in favor of his wife, Louise S. Bucki. Whether or not his will operated as an effective execution of the power of appointment was a question which gave rise to some litigation, and which was finally decided by this court in favor of his widow and appointee. (Hirsch v. Bucki, 162 App. Div. 659.)

The value of the life estate of Charles Lloyd Bucki, and the tax due thereon, was fixed by an order of the Surrogate’s Court dated September 16, 1913. That order provided as follows: “ Further ordered and adjudged, that the tax on the remainder of $18,259 be and the same hereby is suspended until the power of appointment is exercised, or the remainder vests in possession.

This distribution is made with the understanding that in the event of this estate vesting differently than as set forth herein, a reappraisal may be had either in favor of the estate or the State of New York.”

The order now appealed from results from a motion for the appraisal of the remainder passing to Louise S. Bucki by virtue of her husband’s appointment.

The Surrogate’s Court has appraised the remainder at the sum of $18,259, being the value thereof as stated in the order of September 16, 1913. The State Comptroller insists that the value of the remainder should be appraised at its full undiminished value of $42,158.46. He bases this contention upon section 230 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), as amended by chapter 800 of the Laws of 1911, which was the statute in force when Frederica Bucki died. That section, so far as relevant, reads as follows: Estates in expectancy which are contingent or defeasible and in which proceedings for the determination of the tax have not been taken or where the taxation thereof has been held in abeyance, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account o'f any valuation theretofore made of the particular estates for purposes of taxation, upon which said estates in expectancy may have been limited.”

This case seems to fall directly within the purview of this statute. The taxation of the remainder had been held in abeyance, and rightly so. (Matter of Howe, 86 App. Div. 286; affd., 176 N. Y. 570.) The remainder is, therefore, properly to be appraised at its full value unless, as respondent insists, the order of September 16, 1913, is a binding adjudication, not appealed from, that its value is the sum mentioned in that order. Clearly it was not such an adjudication. All that was before the appraiser and the surrogate at that time was the value of the life estate, and it is only as to the value of that estate that the order was conclusive. There was no necessity for then fixing the value of the remainder, and the surrogate had no authority to pass upon that question. (Matter of Mason, 120 App. Div. 738; affd., sub nom. Matter of Naylor, 189 N. Y. 556; Matter of Seligmann, 170 App. Div. 837.)

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the matter remitted to the Surrogate’s Court for an appraisement of the remainder and the fixation of the tax thereon in accordance with this opinion.

Clarke, P. J., McLaughlin", Smith and Davis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to surrogate as stated in opinion.  