
    In the Matter of the Appraisal under the Transfer Tax Acts of the Property of Henry Offerman, Deceased. Carsten Henry Offerman and Others, Appellants; Hubert G. Taylor, County Treasurer of Kings County, Respondent.
    
      Transfer tax — mortgages on the testator’s realty directed to he paid from the personalty — the personal estate is not pro tanto relieved.
    
    The fact that a testator directs his executors, as soon as practicable after his decease, to pay off out of his personal estate and discharge of record all mortgages upon the real estate of which he shall die seized, does not relieve the personal estate to the extent of the amount necessary to satisfy the mortgages from taxation under the Transfer Tax Act.
    The transfer tax should he imposed upon property in the form in which it stands at the time of the testator’s death.
    Appeal by Carsten Henry Offerman, and others, legatees and ■devisees under the last will and testament of Henry Offerman, •deceased, from a decree of the Surrogate’s Court of Kings county, ■entered in said Surrogate’s Court on the 2.6th day of November, 1897, affirming a supplemental decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 10th day .of November, 1897, confirming the report of an appraiser .appointed to fix the taxable value of the property of the decedent.
    
      Charles H. Otis, for the appellants.
    
      Robert B. Bach, for the respondent.
   Goodrich, P. J.:

Henry Offerman died April 28, 1896, leaving a last will which was admitted to probate on May 8,1896. The will made a number of specific bequests, and devised and bequeathed all the rest of the estate, real and personal, to his five children, share and share alike. The 4th clause of the will reads as follows: “ I hereby direct my executors hereinafter named, as soon as practicable after my decease, out of my personal estate, to pay off and procure to be canceled, satisfied and discharged of record, any and all mortgages which shall be a lien upon the real property of which I shall be seized at the time of my decease, or upon any part thereof.”

An appraiser was appointed by the surrogate, and the estate was appraised and assessed as follows:

The surrogate made an order confirming the report and assessing the amount of the transfer tax upon the last-named sum, thus assessing no tax on the amount of the mortgages, and from this order the county treasurer appealed to the surrogate, who ordered the matter of the appraisal to be remitted to the appraiser to amend his report by taxing the $108,000 of mortgages. This being done, the surrogate entered a decree confirming the report, and from this decree the legatees and devisees appeal.

This court had occasion to pass upon a similar question in Matter of Sutton (3 App. Div. 208), and held that the transfer tax should be imposed upon the property in the form in which it stood when the testator died, and this was in accord with the decision of the Appellate Division in the first department in Matter of Livingston (1 App. Div. 568).

The decree must be affirmed, with costs.

All concurred.

Decree of' surrogate affirmed, with ten dollars costs and disbursements.  