
    Matter of the Estate of Anna T. E. Kirtland, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      February, 1916.)
    Taxes—Transfer tax—Report of tax appraiser as to rate of taxtion UPON LEGACY—DEDUCTIONS—EVIDENCE—TAX LAW, § 221a.
    Where a transfer tax appraiser reported that a legatee under the will was a grandniece of decedent and that the legacy should be taxed at the rate of five per cent., but the evidence shows that decedent for more than ten years immediately prior to her death stood in the mutually acknowledged relation of parent to the legatee within the meaning of section 221a óf the Tax Law, the legacy to her is taxable at the rate of one per cent.
    The tax appraiser should have deducted from the assets of decedent within the State of New York the- expenses of administration and commissions allowed by the laws of this State and also the proportion of the debts due to non-residents and administration expenses incurred in the State of decedent’s domicile which the net New York assets bore to the entire assets of the estate.
    Appeal from an order assessing the transfer tax.
    Morgan, Morgan & Carr (Reid L. Carr, of counsel), for executor.
    Manley & Grand, for beneficiary.
    J. T. Durham (A. O. Briggs, of counsel), for state comptroller.
   Fowler, S.—

The transfer tax appraiser reported that Anna ' Hunloke Manley, a legatee under the will of the decedent, was the grandniece of the decedent, and the order entered upon his report assessed a tax upon her legacy at the rate of five per cent. The executor and trustee ha» appealed from the order, and contends that the decedent stood in the mutually acknowledged relation of parent to Anna Hunloke Manley for more than ten years immediately prior to her death, within the meaning of that phrase in section 221a of the Tax Law, and that therefore the value of her legacy should' be taxed at the rate of one per cent. The evidence adduced before the appraiser shows that the decedent had her domicile in Hew Jersey and died on the 23d- day of October, 1912; that Anna Hunloke Manley was her grandniece, and that she came to live with the decedent when she was less than two years of age; that she was clothed, supported and educated by the decedent; that she continued to live in the home of the decedent until she was married; that the decedent frequently introduced her to strangers as her daughter, and addressed her as “ daughter ” orally, as well as in written communications. Fronr all the evidence taken before the appraiser I find that the decedent stood in. the mutually acknowledged relation of parent to Anna Hunloke Manley; that this relationship commenced before her fifteenth birthday and was' continuous for more than ten years thereafter, and that it continued until the death of the decedent. (Matter of Davis, 184 N. Y. 299.) Her legacy, therefore, is taxable at the rate of one per cent .

The executor and trustee also appeals from the order fixing tax upon the ground that the appraiser refused to deduct from the assets in this State the proportion of debts and administration expenses in Hew Jersey which the Hew York assets bore to the entire -assets of the estate. The appraiser merely deducted from the Hew York assets the expenses of administration and commissions allowed- by the laws of this State. He should also have deducted the proportion of the debts- due to nonresidents, and administration expenses incurred in the State of decedent’s domicile, which the net 17ew York assets bore to the entire assets of the estate wherever situated. (Matter of Porter, 67 Misc. Rep. 19 ; affd., 148 App. Div. 896.) The order fixing tax will be reversed and the appraiser’s report remitted to him for correction as indicated.

Order reversed.  