
    In the Matter of the Appraisal under the Act in Relation to Taxable Transfers of Property, of the Property of Mary A. Edson, Deceased. Bird S. Coler, Comptroller of the City of New York, and James A. Roberts, Comptroller of the State of New York, Appellants; John E. Parsons, Individually and as Executor, etc., of Mary A. Edson, Deceased, and Others, Respondents.
    
      Inheritance tax — a legacy absolute in terms, impressed by extrinsic proof with, a trust — a remittitur from, the Court of Appeals examined — the judgment of the Supreme Court entered thereon is not conclusive.
    
    An executor who, under the will, takes a third,of the residuary estate absolutely, unincumbered by any trust imposed by the will itself, is not relieved frompay- • ing the inheritance tax imposed by the Collateral Inheritance Tax Law (Laws of 1887, chap. 713) by the fact that, in an action brought to obtain a judicial construction of the will, it is held as a result of extrinsic evidence that he took the legacy impressed with a trust in favor of the testatrix’s brother.
    The State, not being a party to the action brought to obtain a construction of the will, is not concluded as to its right to collect the tax upon such legacy by a judgment of the Supreme Court, entered upon the remittitur of the Court of Appeals, but. may, for the purpose of determining what was decided in the Court of Appeals, examine the remittitur and the opinion of the Court of Appeals where such opinion is made by the remittitur a part of the judgment of the Court of Appeals.
    Appeal by Bird S. Coler, comptroller of the city of New York, and James A. Roberts, Comptroller of the State of New York, from an order of the Surrogate’s Court of New'York county, entered in said Surrogate’s Court on the 29th day of July, 1898, modifying an order entered in said Surrogate’s Court on the' 6th day of June, 1898, assessing the transfer tax upon property passing to John E. Parsons under the will of Mary A. Edson, deceased.
    
      Jabish Holmes, Jr., for the appellants.
    
      Edward M. Shepard and Thomas T. Sherman, for the respondents.
   O’Brien, J.:

Mary A. Edson died May 29, 1890, leaving a last will and three codicils in which Messrs. John E. Parsons, John A. Bartow and Charles S. Fairchild were named as executors. By the 8th clause of the will and the oth clause of the second codicil she gave her ultimate residuary estate to Messrs. Parsons, Fairchild and Bartow as tenants in common. • Doubts having arisen as to the effect of various provisions of the will, an action was brought by the executors for a construction, which resulted in a judgment of the Special Term whereby, among other things, it was adjudged: The following provision of the said will and second codicil thereto is valid: If for any reason any legacy or legacies left- by this iny will, either pecuniary or residuary, shall lapse or fail, I give and bequeath the amount thereof absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no condition, leaving the same to them personally and absolutely, and without any limitation or restriction. The effect of this provision is to vest in the persons named as executors * ' ■ * "x" absolutely, all portions of the estate of the testatrix which she has failed validly to dispose of by any of the other provisions of her will.” This decision was affirmed on appeal to the General Term (Fairchild v. Edson, 77 Hun, 298); and thereafter the tax ajjpraiser was appointed, who reported as taxable one-third of the ultimate residuary estate, valued at $118,396.98, which passed to Mr. Parsons. The valuation of this one-third is not disputed. This report was confirmed by the surrogate, who by his order assessed a tax against Mr. Parsons and valued his interest, and also imposed a similar tax on the other executors. Thereafter an appeal to the surrogate was taken, not by the executors of Mary A. Edson, but by the executrix of Marmont B. Edson, her brother, which appeal was heard subsequent to the decision of the Court of Appeals in Fairchild v. Edson ; Edson v. Bartow (154 N. Y. 199,215), and the entry of the judgment thereon upon the remittitur in the case of Edson v. Bartow to this court; and the surrogate modified- his earlier order assessing the taxable ■ interests in Miss Edsort’s estate by striking from the list of such-interests the portion given by her will to Mr. Parsons as residuary legatee, practically upon the ground that Mr. Parsons had no title ®r beneficial interest in the bequest of the residuary estate, but that it belonged to the brother of the testatrix, and, therefore, was not liable for the tax. .

Whether this view was. right is necessarily to be determined by the judgment of the Court of Appeals in Edson v. Bartow (154 N. Y. 215, 222), and is not affected by the form of the Supreme Court judgment entered upon filing the remittitur in that case from the Court of Appeals, the State not being a party to that action, a.id the judgment having been entered by consent without its having appeared or been heard. (Matter of Protestant Episcopal Public School, 86 N. Y. 396 ; McGregor v. Buell, 1. Keyes, 153; Freeman v. Barber, 1 Hun, 433.) The learned surrogate was, undoubtedly, influenced by the form of the judgment of the Supreme Court upon such remittitur from the Court of Appeals, which in effect adjudges that upon the death of Mary A. Edson, her brother, Marmont B. Edson, by her will became beneficially entitled to this one-third of her residuary estate, and that the only interest of Mr. Parsons, as trustee thereunder, was for the purpose of doing equity; and to that end it pro vides that the executors, instead of transferring, delivering and paying over the said one-third part of the said residuary estate of the said Mary A. Edson, deceased, to the said John E. Parsons, to be by him individually transferred, delivered and paid over to the said . * * * executrix,” transfer and deliver it to her directly.

The right of the State to collect the tax not being concluded by the form of the Supreme Court judgment in Edson v. Bartow, we are to look at the. judgment of the Court of Appeals, as exqiressed in its opinion (such opinion being made' by its remittitur a part of its judgment), to reach a determination as to what was therein decided. As therein said (154 N. Y. 222): “ We have already pointed out that under the judgment in the first action (Fairchild v. Edson) the legacy to Mr. Parsons did pass under the will and second codicil, and that the court, in the exercise of its equitable ■ jurisdiction, lays hold of this one-third of the estate in the hands of Mr. Parsons, individually, as residuary legatee, and impresses thereon a trust in favor of the next of kin. There was no intestacy as- to this portion of the estate.”

Neither by the express terms of the will nor of the codieil'was it. held that Mr. Parsons became a trustee for the brother. On the contrary, it was held that lie took an absolute legacy; that he obtained under the will the legal title and was the beneficiary in one-third of the residuary estate, "and that the equitable rights of the brother arose, not under the will, but from facts appearing extrinsic thereto.

The question is", therefore, whether Mr. Parsons or the brother oi the testatrix took the one-third interest which it is here sought to tax under the will. If Mr. Parsons, then, under the Collateral Inheritance Tax Law (Chap. 713, Laws of -1887), such interest is subject to the tax. Disregarding the form of the final judgment in the Supreme Court as not binding upon the State, we find that, under the decision of the Court of Appeals, the one-third of the residuary estate passed under the will and vested in Mr. Parsons absolutely, and that no trust was imposed thereon by the will. And although it was held that, as the result of the extrinsic evidence introduced, he took it impressed with a trust in favor of the brother, this would not relieve him from the payment of the tax.

Our conclusion, therefore, is, that the order appealed from was wrong, and should be reversed, and the original order made.by the surrogate assessing the tax should be affirmed, with costs.

Van Brunt, P. J,, Barrett, Rumset and Patterson, JL, concurred.

Order appealed from reversed, and original order made by surrogate affirmed, with costs.  