Buckley's Estate, In re

• Decision Date: 20 September 1961
• Citation: 31 Misc.2d 551,220 N.Y.S.2d 915
• Parties: In re ESTATE of Harry D. BUCKLEY. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 915

220 N.Y.S.2d 915

31 Misc.2d 551

In re ESTATE of Harry D. BUCKLEY.

Surrogate's Court, New York County.

Sept. 20, 1961.

Joseph Trachtman, New York City, for Shirley C. Burden and First Nat. City Trust Co., executors.

Abraham Kaplan, New York City, special guardian for Felix F. Chappellet and others, infants.

Henry C. Bryan, Jr., St. Louis, Mo., pro hac vice for Lydia Lee.

JOSEPH A. COX, Surrogate.

The testator bequeathed a portion of his estate in trust for the benefit of his widow and granted to her a general testamentary power to appoint the trust principal. The widow died, domiciled in Missouri, and exercised the power by a direction that the fund be continued in further trusts. Under Missouri law the trust principal so appointed was includible in the computation of Missouri inheritance tax payable by the estate of the donee of the power. The widow's estate is said to be inadequate to pay the entire tax assessed against it and question has been presented as to the obligation of the donor's estate to meet the deficiency.

This fact situation falls squarely within the long established rule that the courts of this state will not enforce the revenue laws of another jurisdiction and that, in the absence of reciprocal agreement, one state will not aid in the collection of taxes due another (State of Colorado v. Harbeck, 232 N.Y. 71, 133 N.E. 357; Wayne County v. American Steel Export Co., 277 App.Div. 585, 101 N.Y.S.2d 522; Matter of Matthews' Trust, 21 Misc.2d 356, 191 N.Y.S.2d 994; Matter of Lamar's Estate, 15 Misc.2d 544, 182 N.Y.S.2d 512). Section 249-t of the Tax Law, read alone or in conjunction with section 473.688 of the Missouri Revised Statutes 1957, V.A.M.S., is without application to the instant situation.

The donee of the power directed in her will that all estate and inheritance taxes be paid as her debts and this testamentary provision undoubtedly operated as a stipulation against the apportionment of estate or inheritance taxes. However, such provision as to the non-apportionment of taxes cannot be construed as a direction that the appointed property be applied in payment of the donee's debts and, in the absence of such a testamentary direction, the appointed property may not be so used (Matter of Dodge's Estate, 11 Misc.2d 307, 172 N.Y.S.2d 213; Matter of Eginton's Estate, 21 Misc.2d 179, 193 N.Y.S.2d 828).

Proof is lacking as to any agreement on the part of the testator's widow to waive commissions as a fiduciary in...