In re Roosevelt's Estate.

• Decision Date: 09 October 1894
• Citation: 38 N.E. 281,143 N.Y. 120
• Parties: In re ROOSEVELT'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 120

38 N.E. 281

In re ROOSEVELT'S ESTATE.

Court of Appeals of New York.

Oct. 9, 1894.

Appeal from supreme court, general term, first department.

Proceeding to subject the estate of Cornelius V. S. Roosevelt, deceased, to the collateral inheritance tax. From a judgment of the general term (27 N. Y. Supp. 741) reversing an order of the surrogate's court holding that the interests of annuitants and remainder-men are liable to pay presently the tax, the comptroller of the city of New York appeals. Affirmed.

Edward Hassett, for appellant.

George H. Yeaman, for respondents.

BARTLETT, J.

The question presented on this appeal is whether the interests of annuitants and remainder-men under the will of the late Cornelius V. S. Roosevelt are liable to pay presently the collateral inheritance tax. The surrogate's court for the county of New York determined this question in the affirmative, and its order to that effect was reversed by the general term of the first department. The comptroller of the city of New York appeals to this court.

The testator died September 30, 1887, and his will was admitted to probate in the county of New York March 17, 1888. After certain specific legacies to his wife, the testator disposes of his residuary estate as follows, viz.: The entire amount to be held by the executor and the executrix in trust, to pay the income thereof to his wife during her life. At her death seven life annuities are given,-to two persons, $1,000 each; to two persons, $500 each; and to three persons, $5,000 each, with interests in these latter in the nature of cross remainders, contingent upon survival inter sese, the will providing as follows: ‘In case any one of the three last-named annuitants * * * shall die either before or after the death of my said wife, I direct my executors to pay, and I bequeath, to each of the two survivors of them, an annuity of $7,500; and, in case any two of them shall die either before or after the decease of my said wife, I direct my executors to pay, and I bequeath, to the last survivor of them, an annuity of $15,000.’ On the decease of the wife the estate is given, subject to the payments of the annuities, to 12 nephews and nieces. Two of these remainder-men died before the testator, and the appraiser, upon the theory that there was no lapse, and that the survivors would take the whole remainder, has made his estimate accordingly. The appraiser reported in the first instance as follows: ‘The persons who will become entitled to the annuities mentioned in the will cannot now be determined, until the death of the wife; and for that reason also the value of decedent's estate, which is devised at her death to his nephews and nieces, and subject to such annuities, cannot now be ascertained.’ The surrogate sustained objections to this report, and the matter was sent back to the appraiser. The surrogate requested the superintendent of insurance to ascertain the value of the annuities, and, acting upon his information, the appraiser reported the values of the annuities and the estates in remainder. The matter was then duly sent back to the appraiser for the third time, to enable the superintendent of insurance ‘to correct manifest errors.’ The third report of the appraiser increased the value of the compound survivorship annuities, and considerably diminished the value of the estates in remainder, as contained in his second report. This report was confirmed, and was followed in due course of procedure by the order now here for review. We are of opinion that this case must be decided under the law of 1887, in force at the time of testator's death. death.

Two questions are presented for our determination, viz.: First. Are the annuities created by the will such property, in a legal sense, as to be presently taxable, and can their fair...