In re Green's Estate

• Decision Date: 08 June 1897
• Citation: 153 N.Y. 223,47 N.E. 292
• Parties: In re GREEN'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 223

47 N.E. 292

In re GREEN'S ESTATE.

Court of Appeals of New York.

June 8, 1897.

Appeal from supreme court, appellate division, First department.

Appraisal of the estate of Sarah H. Green, deceased, for taxation under the transfer tax law. From a judgment of the supreme court, appellate division (40 N. Y. Supp. 1019), affirming a judgment of the surrogate, the comptroller appeals. Reversed.

John R. Dos Passos, for appellant.

G. G. Frelinghuysen, for respondents.

O'BRIEN, J.

In proceedings under the statute for the assessment of the transfer tax in this case the surrogate reversed his own order which imposed the tax, and held that the property was not subject to such payment. The appellate division has affirmed the order.

Sarah Helen Green, a resident of New York, died on the 21st of May, 1893, leaving a will. Previous to her death, and on the 14th day of February, 1889, she delivered to Frederick Frelinghuysen, as her trustee, over $200,000 of railroad bonds, under a deed or instrument bearing date on that day, which, in terms, purported to assign and deliver this property to the trustee and his successors in trust upon the following conditions, and for the following uses: (1) To collect the income, and apply the same to her use during her life. (2) After her death to divide and pay over the same and the proceeds among her three nieces, who were named; the issue of either who might die before the donor to receive the share to which the mother would be entitled if living, and, in case of the death of either of the nieces before her without issue, her share to go to the survivors. The power was reserved to modify the instrument at any time with the consent of the trustee, and to appoint a successor in case of his death. The trustee was given power also to sell the property in his discretion, and to reinvest the proceeds subject to the same uses and trusts. The instrument was modified by another, executed November 14, 1890, and by another, dated October 28, 1891, both of which were in substantially the same form as the original. The changes made related to the distribution of the remainder among the nieces and their heirs after the death of Mrs. Green, and are not material to the questions involved in the appeal. The trustee accepted the trust, took the property into his possession, and deposited the bonds in a box with a safe-deposit company, where they remained until the death of Mrs. Green. They then passed in possession and enjoyment to the nieces, under the terms of the deed. The question is whether this transfer was subject to the tax authorized by the statute in such cases. The point is made that, since the decision of the appellate division was unanimous, the order is not reviewable in this court. We do not perceive that this provision of the constitution and the statute has any application to such a case. There was no question of fact in controversy. The only question involved was the legal construction of the deed and the statute, and this, of course, was a question of law which this court may review. The act (Laws 1892, c. 399, § 1) provides that the tax shall be paid: (1) When the transfer is by will or by the intestate laws of this state, from any person dying seised or possessed of the property while a resident of the state; (2) when the...