§ 220 Decisions Prior to 1897. death of the beneficiary the title of the appointee be. came absolute in the trust property. Matter of Lord, 111 App. Div. 152; affd., 186 N. Y. 549. (23) Notwithstanding the common-law rule that estates created by the execution of a power take effect as if created by the original deed, for some purposes the execution of the power is considered the source of title, and the U. S. Supreme Court will follow the decision of the State court in determining that the essential thing to transfer an estate is the exercise of a power of appointment. Chanler v. Kelsey, 205 U. S. 466; Matter of Delano, 176 N. Y. 486, supra. 214. Decisions Prior to the Amendment of 1897. Prior to the amendment of 1897 an interesting question arose under the will of Cornelia M. Stewart (131 N. Y. 274) (Act of 1885). The decedent gave a legacy of several million dollars to the executor in trust, either to apply the same to the erection and endowment of a certain institution, or, at his option, to appoint any part of this trust among any of the other legatees named in the will. Several years after decedent's death the executor exercised the power and appointed over two millions of said trust fund among ten of the legatees named in the will. These legatees contended that the sum coming to each of them respectively under the exercise of this power was not taxable, first, because until the power was exercised the legatees had a mere possibility of interest in the property, and, second, because the statute at that time contemplated the taxation only of such interests as could be valued at the death of decedent. The Court of Appeals considered the question as to whether the property so appointed passed by the will Decisions Prior to 1897. § 220 of the testatrix or under the instrument given by the executor in execution of the power, and held in accordance with previous decisions on the same subject, that the parties receiving the legacies took under the will and not under the power, and the legacies were taxable. The court held further that the property should be appraised at its value when the power was exercised. In the Matter of Harbeck, 161 N. Y. 211, the decedent died several years prior to the enactment of any inheritance or transfer tax law, leaving a large amount of money in trust for the use of his wife during life and giving her power to appoint the principal of said trust by her will, and failing such appointment it should go according to the statute of descent. The widow died in 1896, exercising the power by her will, The State contended that because the tax was one upon the succession and was imposed when that right came into being upon the death of the widow, and because in effect the legatees took under the widow's will and not under the will of John H. Harbeck, that the estate was taxable. The court held that under the law as it existed in 1896 the property passed to the beneficiaries under the will of John H. Harbeck, which took effect several years prior to the passage of any transfer tax law, and therefore was not taxable. Where one died prior to the existence of the Transfer Tax Law and gave her residuary estate to her husband for life, with the right to dispose of the same at his death by will, and the husband died after the passage of the Transfer Tax Act, leaving a will, by the terms of which he directed his executors to keep his deceased wife's estate separate from his estate, and to deliver it to her executors to be administered by $ 220 Decisions Prior to 1897. them under the provisions of her will, it was held that the husband had failed to exercise the power of ap pointment and that the legatees took under the wife's will, and not under the will of the husband, and as the wife died prior to the Transfer Tax Law there was no tax on the estate so passing. Matter of Langdon, 153 N. Y. 6. CHAPTER VII. TAXABLE TRANSFERS - SUCCESSION TAX UPON THE TRANSFER OF PROPERTY. Nonresident Decedents. (§ 220, Tax Law.) 1 "When the transfer is by will or Intestate Law, of property within the State, and the decedent was a nonresident of the State at the time of his death." Subdivision 2, section 220, supra. 215. Constitutionality of the act. 216. History of the law. 217. Section 15 of chapter 713, Laws of 1887, relating to the jurisdiction of the surrogate, is constitutional. 218. Jurisdiction of the surrogate. 219. Id.; when decedent owned both real and personal property in this State. 220. Residence of decedent. Prac tice where issue in respect thereto was raised on application for an appraiser. 221. Id.; practice where question of residence is raised before the appraiser. 222. Id.; residence must be deter mined by the surrogate, before he can compel the executor to testify as to all of decedent's property. 223. Id.; surrogate can appoint a referee to determine decedent's residence. 224. Id.; surrogate may, however, determine residence from the report of the appraiser. 225. Id.; statement of deceased as to his residence. 226. Id.; voting does not establish a continued residence. 227. Id.; the avowed intention of constant residence constitutes domicile. 228. Id.; will not conclusive as to residence. 229. When probate proceedings and judicial settlement and distribution in another State, prior to transfer tax proceedings in this State, are a bar thereto. 230. Recognition of laws of other States respecting distribution, etc. 231. Property of decedent where community law prevails. 232. Where husband is statutory trustee of wife's property and entitled to a life estate therein. 233. Right of foreign executor to apply decedent's property in payment of legacies. 234. Appraiser could not assume that executor would apply the property in this State pro rata in paying legacies. Nonresident Decedents. $ 220 237. When pledged property not 238. Deduction of debt of nonresiIdent due New York creditors secured by pledge of taxable and nontaxable securities. 239. Executors cannot elect to pay debts owing nonresident creditors and annuities, wholly out of property in this State. 240. Foreign executors have the right to appeal. 241. Executors can appeal although will charges tax upon residuary legatees. 242. When executor not obliged to testify. 243. Appraisal of bonds and stocks of New York corporations distinction between. 244. Bonds and stocks of foreign of United States bonds be- 245. Both registered and coupon 246. Money deposited in bank. 248. Legacy payable to a nonresident who died before receiving it, when taxable. 249. Seat or membership in stock exchange. 250. Debts owing by a resident to a nonresident, constitute property within the meaning of the statute. 251. Notes inventoried at par must 252. Money deposited with trust company. 254. Promissory notes, payable outside this State, but kept here by nonresident decedent, are taxable. 255. Appraisal of stocks of domestic corporations owned by nonresident. 256. Stocks of corporations incorporated in this State and one or more other States, when owned by a nonresident are appraised proportionately. ocean 257. Id.; a deduction of special terminals of the Fitchburg railroad in Massachusetts-held proper. 258. A nonresident decedent's interest in a bond and mortgage on New York real estate, held by a nonresident trustee, is not taxable, although the bond and mort. |