§ 220 Id.; Deduction of Special Property from Total Capital. States, its stock was for a time thereafter appraised at 35.66 per cent. of its market value at the time of the decedent's death. 257. Id. A Deduction of Special Ocean Terminals of the Fitchburg Railroad in Massachusetts, Held Proper. In the Matter of Thayer, 193 N. Y. 430, it was held by the Court of Appeals that the observations in the Cooley case as to what would be a convenient and substantially correct method of appraising the stock of corporations incorporated in this State and one or more other States were merely by way of suggestion, to be adopted by the appraising officials if they saw fit, but were not intended to be controlling upon them. In the appraisal of the Thayer estate the decedent had 1,714 shares of the Fitchburg Railroad Company and eight shares of the Boston and Albany Railroad Company. On appeal to the surrogate from the taxing order Surrogate Beckett (Matter of Thayer, 58 Misc. Rep. 117) held that in appraising for the purpose of the transfer tax, capital stock of a railroad company having its lines in this and adjoining States, belonging to the estate of a nonresident decedent, for the purpose of ascertaining the proportion of the property of the railroad company within this State, the court will make an apportionment on the basis of total mileage in preference (1) to the mileage between terminal points, or (2) a detailed inventory and valuation of all the pieces of property belonging to the corporation, or (3) a computation upon figures drawn from the books and balance sheets of the company. The surrogate further held that the Fitchburg Railroad owns in Boston and Somerville, Mass., wharves, grain elevators, and connecting tracks (a marine terminal) Bond and Mortgage on New York Real Estate. § 220 which are outside of and apart from the ordinary freight and passenger terminals of the road; that the value of this special property, $1,812,000, should be deducted from the total capital before apportioning the capital stock on a mileage basis. The result of this decision was to make the stock of the Fitchburg Railroad taxable on a basis of 25.31 per cent. of the market value of the stock at the date of decedent's death, and it was further determined in this case that the stock of the Boston and Albany Railroad should be appraised at 18.37 per cent. of its market value on a total mileage basis. The Appellate Division affirmed the foregoing decision, without opinion, and the principal contention of the Comptroller argued in the Court of Appeals was that the deduction of the value of the marine terminals above mentioned was improper when the theory of determining the value of the stock was based on a proportional total mileage in each State. The Court of Appeals held in respect to this point that the valuation of the stock is a question of fact, and the decision of the surrogate on this question of fact having been unanimously affirmed by the Appellate Division, it was conclusive, as no error of law was involved, and the order was affirmed. 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 Mortgage Belonged to a Resident Decedent's Estate. Andrew Turney, a resident of Ireland, died October 14, 1904, and at the time of his death he was entitled as remainderman to one-quarter of the estate of Henry Turney, who died October 23, 1895, a resident of the State of New York. At the time of the death of An $ 220 Life Insurance Policies. drew Turney all the property of the decedent Henry Turney had been distributed except $30,000, which had been invested upon a bond and mortgage on real property in New York city, the loan being made by the trustee of the will of Henry Turney, who resided at East Orange, New Jersey. The trustee thereafter presented a petition to the Surrogate's Court of the county of New York showing that the only property of the decedent Andrew Turney in this country was his one-quarter interest in the bond and mortgage which was held by the trustee at his residence in New Jersey at the time of the death of said Andrew Turney, and asked for an order exempting the estate from a transfer tax, the next-of-kin of the said Andrew Turney being a brother and nephew. The motion was opposed by the Comptroller. Surrogate Fitzgerald granted the appli cation to declare the estate exempt (citing Rhoades v. Caswell, 41 App. Div. 229), N. Y. Law Journal, November 25, 1905, and this order was affirmed. Matter of Turney, 120 App. Div. 881. - 259. Life Insurance Policies Claim Thereunder, When Not Property within This State. The proceeds of a life insurance policy issued upon the life of a nonresident, by a domestic corporation, and payable to the estate of the insured at the principal office of the company within this State should be regarded as property within the State of the decedent's residence, rather than property within this State, and, therefore, not subject to a transfer tax. Where it appears that the insured was a resident of a foreign State at the time the policy was issued; that the policy had at all times been kept within that State and the premiums paid there; that the insured died there and Id.; Situs of Policy Not Material. § 220 his will was admitted to probate and his executors appointed there; that the proofs of death might have been made there if the policy had not been paid voluntarily; that the company, as a condition of doing business in that State, had designated a certain official thereof to receive service of process with the same effect as if served personally upon the company; and that at the time of the death of the insured there was sufficient property of the company within that State to satisfy the policy, so that it would not be necessary for decedent's executors to come into this State to protect and collect his claim under the policy if it had not been paid; such circumstances are sufficient to fix the situs of the contract of insurance and the claims arising thereunder in the State of decedent's late residence and not within this State. Matter of Gordon, 186 N. Y. 471; Matter of Abbett, 29 Misc. Rep. 567, 61 N. Y. S. 1067; Matter of Horn, 39 Misc. Rep. 133, 78 N. Y. S. 979. 260. Id.; Situs of Policy Not Material. In the Matter of Gordon, 114 App. Div. 202, affd., 186 N. Y. 471, it was said by the Appellate Division that even though the proceeds of a life insurance policy issued by a domestic corporation to a nonresident be considered a debt due and payable within this State, it is not taxable in this State when the policy is not within the State at the death of the insured. In the Matter of Gibbs, 60 Misc. Rep. 645, 113 N. Y. S. 939, the decedent was a resident of Virginia, and in appraising his property within this State the appraiser included the proceeds of several policies of insurance as assets of the decedent, because the policies in two of said insurance companies were within this State at § 220 Id.; When Proceeds Become Property. the time of the decedent's death, while in the Gordon case (supra), the policies were kept at the decedent's domicile without this State. On the appeal Surrogate Beckett held that this contention was untenable, as the point upon which the Gordon case was decided by the Court of Appeals and differentiated from the other case decided by that court in which it had been held that an indebtedness due from a resident to a nonresident was taxable, was, that in the Gordon case it was not necessary for the creditors to come to this State and invoke the assistance of our courts for the purpose of enforcing his claim, and in the case under consideration it appeared by affidavit that both the Home Life Insurance Company and the Mutual Life Insurance Company had sufficient property in the State of Virginia to satisfy the claims of decedent, and that a person upon whom process could be served had been designated in that State by each of these companies. 261. Id.; When Proceeds of Policy Becomes Property. The proceeds of a life insurance policy does not become the property of the estate until paid the foreign executor, and it then becomes money in the foreign State, under the control of that State, and is therefore not taxable here. Matter of Gordon, 114 App. Div. 202; affd., 186 N. Y. 471. 262. Distinction between Property in This State Passing by Exercise of Appointment, and Property of Decedent, Transferred by the Same Will. Edward C. Lord, a resident of New Jersey, died leaving a will exercising a power of appointment which he as beneficiary had of two trust funds in this State in favor of his wife, and also making his wife his |