
    In the Matter of the Transfer Tax on the Estate of Letty J. Libolt, Deceased. The Comptroller of the State of New York, Appellant; David L. Conkling and Arthur Penny, Executors, etc., of Letty J. Libolt, Deceased, and Daniel Libolt, Respondents.
    
      Transfer tax — where the articles specified in subdivision 3 of section 3713 of the Code of Civil Procedure do not exist their value should not be deducted front the taxable estate.
    
    Under subdivision 3 of section 3713 of the Code of Civil Procedure, entitling the husband, wife and minor children of a decedent to have set apart to them out of the decedent’s estate the articles enumerated therein, such as a sheep, swine, cows, etc., the husband, wife and minor children are not entitled, if the decedent was not possessed of such articles, to a money allowance equivalent to their value, nor in such a case should the money equivalent of such articles be deducted from the value of the assets of the decedent’s estate when fixing the amount of the transfer tax thereon.
    Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 14th day of J uly, 1904, affirming an order of said Surrogate’s Court entered on the 5th day of October, 1903, determining the amount and value of the estate of Letty J. Libolt, deceased, for the purpose of a transfer tax; and also from an order of said Surrogate’s Court, entered on the 14th day of July, 1904, opening the hearing in the above-entitled proceeding and permitting the executors of Letty J. Libolt, deceased, to furnish and introduce certain evidence.
    
      Henry W. Wiggins, for the appellant.
    
      George H. Decker, for the respondents.
   Hirschberg, P. J.:

The learned surrogate has determined that the sum of $445 is to be deducted from the value of the actual assets of the estatp in arriving at the amount which is lawfully subject to a transfer tax. The theory upon which the deduction is made is that the husband of the testatrix would have been entitled to the exemptions enumerated in subdivision 3 of section 2713 of the Code of Civil Procedure had his wife been possessed of the articles exempted, such as sheep, swine, a cow, etc., but as the articles therein enumerated did not in fact exist he was, nevertheless, entitled to receive their ássumed cash value in 'lieu of them; and that accordingly such value is no part of the estate to 1be transferred under the will, or to be taxed under the provisions of the Tax Law (Laws of 1896, chap. 908, § 220 et seq., as amd.).° The determination is on the authority of Matter of Williams (31 App. Div. 617) wherein it is assumed that this court decided that where the estate of a decedent has not the specific articles mentioned in subdivision 3 of section 2713 (supra) the court may.properly make a money allowance equivalent to their value.

The exemptions allowed by the section in question are quite specific with one or two exceptions, and it is plain from the precise language employed that the general intention is to limit the allowance to articles actually in existence. They are all articles of personal property, some of which are referred to as being in use by the family, and they are declared by the terms of the section not to-be deemed assets of the estate, but are to be included in the inventory unappraised, and to be “ set apart ” for the benefit of the widow or husband, and minor child or children. There is nothing in the section tending to indicate in any way an intention to exempt or set apart any articles which may not in fact exist, or to exempt an equivalent in money in lien of such articles. It would have been easy to express such intention had it existed, and to have provided some practical means for the determination of the value of the non-existent articles. We, therefore, conclude that the order appealed from finds no support in the language of the statute. (See Baucus v. Stover, 24 Hun, 109, and Matter of Keough, 42 Misc. Rep. 387.)

The Williams Case (supra) did not decide that the deduction-allowed herein might lawfully be made. The reasoning of the opinion would probably justify such a conclusion, but none of the associate justices concurred in the opinion, their concurrence being expressly confined to the result. The case did not arise under the Tax Law. The only question presented was whether the widow was entitled to necessary provisions and fuel during the sixty days succeeding her husband’s death, such provisions and fuel being exempted under subdivision 3 of section 2713 (supra), in addition to ten sheep, one cow, two swine, etc., an allowance for all of which articles has been made herein. In that case no provision whatever was made for the widow by the will, and her application to the surrogate for sustenance was made long after the sixty days had expired. As the appraisers had failed to set apart either provisions or fuel for her use and the statutory period had elapsed, the court could only make her a reasonable allowance in money out of the estate as a substitute for the articles of which she had been unlawfully deprived, or as compensation for the redress of her undoubted grievance; and' an affirmance of this result is the extent of the decision in this court. The question whether an allowance in money would have been proper at the time of quarantine, in the absence of provisions and fuel, was not before the court then, nor is it now; although such a question would obviously present different considerations from those which are suggested by this controversy. It is sufficient for the purpose of the present appeal that the Tax Law itself makes no provision for the deduction from the taxable estáte of the value of articles which would have been exempted for the use of a wife or husband had such articles existed, but which do not in fact exist, and that the case of Matter of Williams (supra) is not a controlling authority beyond the facts which then engaged the attention of the court.

It follows that the order should be reversed and the appraisal modified accordingly; but as the practice adopted by the learned surrogate has been to a large extent the rule in this department since the decision of the Williams case, the reversal should be without costs.

Bartlett, Woodward and Jenks, JJ., concurred; Hooker, J., not voting.

Order of the Surrogate’s Court of Orange county reversed, and appraisal modified in accordance with opinion of Hirsohberg P. J., without costs.  