
    In the Matter of the Appraisal Under the Act Relating to Taxable Transfers of the Property of Winifred Purdy, Deceased.
    
      (Surrogate’s Court, Westchester County,
    
    
      Filed July, 1898.)
    Tkansfer Tax — Apportionment of Debts.
    Where the personal estate consists, in part, of exempt government bonds, the appraiser should, in estimating the taxable value of the-estate, apportion the debts, expenses of administration and commissions ratably between the government bonds and the other taxable personal pi’operty. ♦
    Appeal from a decree entered upon the report of an appraiser under the Transfer Tax Act.
    -Henry C. Griffin, for appellant; Joseph W. Middlebrook, for State comptroller and county treasurer, respondents.
   Silkman, S.

This is an appeal from the decree entered upon the report of the appraiser, and the ground of the appeal is that the appraiser in arriving at the value of the estate to which a taxable succession is had, has deducted only a proportionate share of the debts of decedent, the expenses of administration and commissions of executor.

The testatrix left an estate, the personal property of which amounts to $9,011.90, including $1,800, represented by United States government bonds, at their par value.

The expense- of administration, debts -of decedent and commissions of executor amount to $1,267.67; of this sum the appraiser deducted only a proportionate share, to wit: $1,047.49, from the value of that part of the personalty the succession to which is taxable.

The amount involved is very small, nevertheless the question is entitled to careful consideration, in view of its bearing upon matters involving much larger amounts.

Counsel for both appellant and respondents unite in the statement that there is no> reported case in which the question presented has been determined. We consequently must seek the solution of a novel question.

The Transfer Tax Law provides a general scheme of taxation. The provisions of such statutes granting exemptions from the general scheme of taxation are to be strictly construed against the claim. Cooley on Taxation (2d ed.), 205; Association, etc., v. Mayor, 104 N. Y. 587.

The reason that the value of the government bonds are not to be considered in arriving at the value of property which measures the taxable inheritance is not because the succession to government bonds, or their proceeds, conflicts with the principle that a State cannot tax the obligations of the Federal government, but because the language of the Transfer Act itself defines the words “ estate ” and “ property ” to mean prop-' erty passing from the testator over which the State has jurisdiction, for the purposes of taxation. Matter of Sherman, 153 N. Y. 1.

Eederai securities are, therefore, only exempted by virtue of the language of the act.

The appraiser under section 230 of the General Tax Law is to fix “ the fair market value at the time of the transfer thereof of the property of persons whose estate shall be subject to the payment of any tax imposed by this article,” and in arriving at the fair market value he must deduct from the personal prqperty the debts of the decedent, the expenses of administration and the commissions of the executor or administrator. Matter of Westurn, 152 N. Y. 93.

Personal property is primarily liable for the debts of decedent, and the expenses of administration, and I know of no rule or principle which selects any portion of the personal property to bear this burden in preference to any- other. Government bonds are equally responsible for debts, expenses of administration and commissions with bonds and mortgages, bank stock or money in bank. There would, therefore, seem to be no more reason for not requiring the government bonds to bear any proportion of the debts of decedent, expenses of administration and commissions, than there would be for requiring such government bonds to bear the entire amount of the debts and expenses of administration.

It would seem to me that the respondents might make the. •claim with equal force, as the claim is made by the appellant, that the entire amount of the debts of decedent'and •’expenses ■of administration should be charged against the government bonds, and yet this would seem inequitable. I think that the appraiser has adopted the only rule that is supported by principle and equitable considerations, and the one that will not lead to confusion.

For instance, suppose that testator left personal property • mounting to $20,000. Ten thousand dollars in government bonds, and $10,000 in money in bank. Hé gives a legacy to a son of $10,000, and a legacy to a nepbew of $10,000; one pays a tax at the rate of 1 per cent., and the other at the rate of 5 per cent.. In valuing the succession of the son, and of the nephew, are the government bonds to be deducted from the' property to which the son succeeds, or to which the nephew succeeds ? The bare statement of such a case carries with it forcibly the necessity for laying down some equitable rule for apportionment when government bonds are involved. And if an equitable rule is to be applied in the case of legacies, I see no reason why a similar equitable rule should not be< applied in apportioning the amounts of debts, expenses of administration and commissions.

I will, therefore, affirm the decree entered upon the report of appraiser, with costs to the respondents, which, in view of the limited amount involved, will be fixed at $10.

Decree affirmed, with $10 costs.  