In re Kimberly's Estate

• Decision Date: 06 October 1896
• Citation: 150 N.Y. 90,44 N.E. 945
• Parties: In re KIMBERLY'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 90

44 N.E. 945

In re KIMBERLY'S ESTATE.

Court of Appeals of New York.

Oct. 6, 1896.

Appeal from supreme court, appellate division, Second department.

Application by Louisa Kimberly, as executrix of the last will and testament of David F. Kimberly, deceased, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. An order of the surrogate of Kings county, confirming the report of the appraiser, having been affirmed by an order of the appellate division of the supreme court for the Second department, the applicant appeals. Affirmed.

For former report, see 38 N. Y. Supp. 399.

This is an appeal from an order of the appellate division of the supreme court in the Second department, affirming an order of the surrogate of Kings county, which confirmed the report of an appraiser appointed to fix the transfer tax upon the property of the estate of David F. Kimberly, deceased. David F. Kimberly died in the city of Brooklyn, June 29, 1895, leaving a last will and testament, which was admitted to probate on the 10th of the following September. Louisa Kimberly, the appellant, alone qualified as executrix thereof. She subsequently petitioned the surrogate of Kings county for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom. The will of the decedent, so far as material to the questions involved on this appeal, is as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situate, unto my three sisters, Mary, Annie, and Louisa.’ Mary died prior to the death of the testator. The appraiser fixed the tax upon the theory that the testator died intestate as to one-third of his estate, by reason of the predecease of Mary Kimberly; that Annie and Louisa each took one-third of Mary's share as next of kin; and that the remaining one-third passed to nine nephews and nieces of the decedent, as their share of the estate which was undisposed of by the will. The appraiser filed his report with the surrogate December 10, 1895, and on the same day the surrogate made an order confirming it, and assessing the tax at the amount mentioned therein. From that order an appeal was taken to the surrogate, and the former order and report of the appraiser were confirmed, and an appeal was taken to the appellate division of the supreme court, where the latter order was affirmed.

Geo. B. & Edward Goldschmidt, for appellant.

Robert B. Bach, for respondent county treasurer.

MARTIN, J. (after stating the facts).

No question as to the facts or the procedure in this case arises upon this appeal. The sole question involved relates to the construction of the testator's will, and is whether the bequest was to the testator's sisters jointly, or whether they took the property as tenants in common. That, upon the death of one of the legatees before the decease of the...