Decisions Affecting Transfers. § 220 property passing under it. Matter of Dows, 167 N. Y. 227. But where the effect of the exercise of a power is merely to continue the title to property already vested or contingent in the appointee by the same will which created the power, such an appointment, which leaves everything as it was before and which gives nothing to or takes nothing from the appointee, is a mere form, and does not make a taxable transfer by will, under subdivision 5* of section 220, where the appointee elects to hold her title under the former will, as she can accept the title tendered by the formal execution of the power or reject it, in her discretion. Matter of Lansing, 182 N. Y. 238. (3.) Where a will purports to dispose of all the testator's property it operates as an execution of a power of appointment, unless the intent that it shall not so operate appears expressly or by implication. Lockwood v. Middleberger, 159 N. Y. 181. (4.) That the tax on the transfer upon the exercise of the power of appointment is on the succession, the same as in other cases. Matter of Dows, 167 N. Y. 227. (5.) That when the power of appointment is exercised the statute does not impose a tax upon the property, but upon the exercise of the power by will, and the statute applies alike to all powers of appointment without distinction on account of the method of creation, or date of creation. Matter of Delano, 176 N. Y. 486. (6.) That the tax on a transfer made under a power given to a life tenant to appoint the remainder therein must be assessed at the death of the life tenant on the present value of all the property passing under the Now subd. 6. § 220 Decisions Affecting Transfers. power. Matter of Tucker, 27 Misc. Rep. 616, 59 N. Y. S. 699; Matter of Stewart, 131 N. Y. 274 (Act 1885). (7.) The relationship between the donee of the power and the appointee under his will determines the rate of tax. Matter of Seaver, 63 App. Div. 283, 71 N. Y. S. 544; Matter of Walworth, 66 App. Div. 171, 72 N. Y. S. 984; Matter of Rogers, 71 App. Div. 461, 75 N. Y. S. 835; affd., on opinion below, 172 N. Y. 617. (8.) That while the property at the time of the creation of the power may have been real estate, if it is personal property when the power is exercised it is subject to tax as such. Matter of Dows, 167 N. Y. 227. (9.) Where real property is conveyed to trustees with power to sell or mortgage, and providing that at the death of the grantor it should be held in trust for her daughters, each daughter being given power to appoint her share among her lawful issue, and failing to do so, her share to belong to such of her issue as shall survive her. Held, on the death of a daughter leaving issue and not having exercised her power of appointment, that the transfer of the share of the deceased daughter which had been converted into personalty, and over which she had failed to exercise such power, was subject to tax under Laws of 1896, chapter 908, section 220, subdivision 5,* as amended by chapter 284, Laws of 1897, although as real estate it would not have been taxable. Matter of Bartow, 30 Misc. Rep. 27, 62 N. Y. S. 1000. (10.) Remainders created by exercise of power, when they are absolute and vested, are subject to taxation at the time of the transfer, and they do not come within the exception of section 222. Matter of Dows, *Now subd. 6. Decisions Affecting Transfers. § 220 167 N. Y. 227; Matter of Roosevelt, 143 N. Y. 120, distinguished. (11.) That subdivision 5* of section 220 is not repealed by the provisions of section 230, as amended by chapter 76, Laws of 1899, which provides for the immediate taxation of future and contingent interests, and therefore the taxation of a remainder interest in which a power of appointment is involved must be suspended until such power is exercised. Matter of Howe, 86 App. Div. 287, 83 N. Y. S. 825; affd., 176 N. Y. 570; overruling Matter of Le Brun, 39 Misc. Rep. 516, 80 N. Y. S. 486. (12.) A provision in the will of a donee of a power of appointment directing her executors to repay a loan theretofore made to her out of the property in respect to which the power of appointment was given constitutes, when accepted by the creditor, a taxable transfer. Matter of Westurn, 152 N. Y. 93, and Matter of Gould, 156 N. Y. 423, followed; Matter of Rogers, 71 App. Div. 461, 75 N. Y. S. 835; affd., 172 N. Y. 617. (13.) Surrogate having jurisdiction. When property is transferred under a power of appointment the surrogate of the county in which the donee of the power resided at the time of death, and in which her will was admitted to probate, has jurisdiction under section 229 (now § 228) to determine whether the transfer is taxable. Matter of Seaver, 63 App. Div. 283, 71 N. Y. S. 544. (14.) That it is the exercise of the power of appointment and not the creation of the power which effects taxable transfers, and therefore there is nothing taxable until the power is exercised. Matter of Howe, 86 *Now subd. 6. § 220 Decisions Affecting Transfers. App. Div. 286, 83 N. Y. S. 825; affd., 176 N. Y. 570. Citing Matter of Seaver, 63 App. Div. 283, 71 N. Y. S. 544; Matter of Walworth, 66 App. Div. 171, 72 N. Y. S. 984. (15.) When the exercise of a power is in contravention of the statute of perpetuities, the estate created under such power must be referred back to the instrument granting the power. Genet v. Hunt, 113 N. Y. 158; Matter of Dows, 167 N. Y. 227–231. * (16.) The courts have never passed upon the provisions of subdivision 5* in reference to the taxing of a transfer under a power where the donee shall omit or fail to exercise the power in whole or in part, the statute providing in that event that " a transfer taxable under the provisions of this act shall be deemed to take place *," etc. The court, in the Matter of Dows, 176 N. Y. at p. 232, states that where a fund passes upon failure to exercise the power, that they express no opinion on the question, whether, under such circumstances, the tax imposed by the amendment of 1897 could be deemed other than a tax on the property itself. In the Matter of Lansing, 182 N. Y. 238, the court says: "We pass without serious discussion that part of the statute which provides in substance, that the failure or omission to exercise a power of appointment subjects the property to a transfer tax in the same manner as if the donee of the power had owned the property and had devised it by will." (17.) That an appointee under a power has the right of election the same as a grantee under a deed. Matter of Lansing, 182 N. Y. 238-245. (18.) That section 31 of the Real Property Law pro *Now subd. 6. Decisions Affecting Transfers. § 220 vides that the existence of an unexecuted power of appointment does not prevent the vesting of a future estate, limited in default of the execution of the power," and that until the execution of the power the remainders or limitations over take effect the same as if no such power existed or as in case of default of execution of it. Matter of Haggerty, 128 App. Div. 479481; affd., 194 N. Y., mem. (Section 41 of art. 3, chap. 50, of the Consolidated Laws, being chap. 52 of the Laws of 1909.) (19.) That where an appointee is given by deed of his grandfather an undivided fourth of certain property, and by the exercise of an appointment over the same property he is given the whole thereof absolutely, the appointee cannot claim one-fourth under the deed so as to escape the transfer tax thereon, for he is bound to accept or reject under the will exercising the power as an entirety. Matter of Lansing, 182 N. Y. 238. (20.) That the situs of the property passing under the exercise of a power of appointment by a resident decedent is immaterial. Matter of Hull, 111 App. Div. 322; affd., 186 N. Y. 586. (21.) Remaindermen cannot be said to have elected to take under their father's will when there is no evidence showing such election. Matter of Backhouse, 110 App. Div. 737; affd., 185 N. Y. 545. (22.) Where a nonresident testatrix makes a bequest of property within this State, which came to her as the corpus of a trust fund of which her husband, also deceased, was beneficiary, and over which he exercised a power of appointment in her favor, such property is subject to a transfer tax, because on the exercise of the power the title of the testatrix relates back to the instrument creating the trust, and immediately upon the |