
    In the Matter of the Estate of Patrick Walsh, Deceased. State Tax Commission, Appellant-Respondent; Michael F. Walsh et al., as Executors of Patrick Walsh, Deceased, Respondents-Appellants.
   Cross appeals by the State Tax Commission and by executors from an order denying a motion to dismiss the appeal of the State Tax Commission from an order exempting the property of the estate from tax, but on the appeal affirming the tax exemption order in all respects. Order modified on the law by striking out the second ordering paragraph and by providing in lieu thereof that the property in the estate is subject to a tax. As thus modified, the order, insofar as appealed from, is unanimously affirmed, without costs, and the matter is remitted to the Surrogate for fixation of tax. The appeal to the Surrogate from the tax exemption order was in accordance with established practice and pursuant to sections 249-w and 249-x of the Tax Law, particularly in the light of the fact that no appraisal had been made and the Surrogate had accepted on their face valuations set forth in the petition. (Matter of Costello, 189 N. Y. 288. [See record on appeal].) In view of the power vested in the life tenant to invade so much of the corpus as she might desire, no indefeasible interest as to amount vested in the remaindermen within the meaning of section 249-q of the Tax Law. (Matter of Benson, 275 App. Div. 226.) The determination with respect to the remaindermen must be made in accordance with the statutory test, irrespective of exemptions which might be granted to others, provided they had received amounts of the estate which were transferred to and indefensibly vested in them. Present — Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ. [189 Mise. 350; 191 Misc. 792.]  