
    In the Matter of the Appraisal of the Property of Sophia H. Kennedy, Under the Act in Relation to Taxable Transfers of Property.
    
      (Surrogate’s Court, New York County,
    
    
      Filed June, 1897.)
    1. Tkansfer Tax — Appraisal—'Deductions.
    In appraising the value of stock in domestic corporations owned by a nonresident decedent at , tlie time of his death, no deduction can be' made for the amount of a legacy tax paid in the domiciliary state, as the fact that the legacy has been, or will be, taxed cannot be considered by our courts.
    2. Same.
    Where there is no proof as to the rate of executors’ commissions in the foreign state, the appraiser should deduct a proportionate amount of commission, based upon the relative amount of property in this state, at the rate allowed here.
    Appeal to surrogate from order of surrogate fixing tax as of course on report by appraiser, who excluded claim for deduction of transfer tax and commissions paid at domicile of, decedent.
    Strong & Cadwalader, for appellants; Emmet R. Olcott, for respondent.
   Fitzgerald, S.

The decedent was a resident of Pennsylvania at the time of her death in October, 1895. She owned stock iii New York corporations, taxable under the Bronson decision, 150 N. Y. 1. The-property in'New York was in proportion to the entire estate as two to five, and the appraiser deducted that proportion of the total debts, funeral and administration expenses from the taxable estate in this state. He refused, however, to deduct this proportionate sum from the amount of the legacy tax paid upon the entire estate in Pennsylvania, about $20,000. The fact that a legacy will be liable to a tax is not considered by the court in ascertaining upon what sum the tax is levied. Thus in the ease of a resident collateral legatee, the court is aware that he will receive but 95 per cent, of its amount. Should the 5 per cent, tax for that reason be calculated upon that 95 per cent., and not upon •the face of the legacy? So, too, the fact that when the fund is transmitted to the domiciliary jurisdiction, a deduction will be made for a legacy tax, should not be considered in fixing the value of the shares for the purpose of taxation. In the Matter of Swift, 16 N. Y. Supp. 193; affirmed in Court of Appeals, 137 N. Y. 77, the will directed that the succession tax should be paid by the executors as an expense of administration. The appraiser deducted the amount of tax on other legacies from thei value of the residuary estate, and was overruled by the surrogate. The appraiser herein correctly refused to make this deduction. It appears by the schedule filed with the appraiser that nearly $12,000 was paid as executors’ commissions in Pennsylvania. The briefs of counsel state (but it. nowhere appears in the proofs) that a larger percentage is allowed there than in New York for this purpose. The appraiser calculated the commissions at the rate allowed by the New York statute, and deducted a proportionate amount therefor. It is unnecessary to decide whether had the appellant proved the foreign law on this subject I would have.made the deduction claimed. There being no evidence, and the deduction claimed being excessive under our statutes, the appraiser is sustained. The order appealed from is affirmed.

Order affirmed.  