When Witness Liable for Contempt. § 230 residuary legatee, son of decedent, may testify to interviews had by him with the decedent tending to show that a particular legacy was given to him by the will in payment of a debt for services rendered by him to decedent. Matter of Gould, 19 App. Div. 352, 46 N. Y. S. 506. 474. Testimony of Legatee. A legatee is not prohibited from testifying before an appraiser as to interviews had by him with the decedent, and which tend to show why, or for what purpose a particular legacy was given to him by the decedent. Matter of Brundage, 31 App. Div. 348–353. Citing Matter of Gould, 19 App. Div. 352, 46 N. Y. S. 506; modified as to other points, 156 N. Y. 423. 475. Nonresident Executor - When Not Obliged to Testify. The executor of a nonresident decedent is not obliged to testify before the appraiser in reference to the decedent's property without this State, or as to stock of foreign corporations owned by the nonresident decedent. Matter of Bishop, 82 App. Div. 112, 81 N. Y. S. 474. 476. Witness Refusing to Answer Material Question Liable for Contempt. Where a witness refuses to answer a material question in reference to a gift to himself by the testator, he can be punished for contempt by the surrogate. Matter of Kennedy, 113 App. Div. 4-8. 477. Basis of Value. The true test of value by which the tax is to be measured is the value of the estate at the time of the transfers of title, and not the value at the time of the trans § 230 Trust Fund Subject to Appointment. fer of possession. Matter of Davis, 149 N. Y. 539. (Decision, Act of 1887.) 478. Increase of Property-Not to Be Appraised. In determining the taxable estate only the property of which a person dies seized or possessed is to be appraised; the increase or interest thereafter obtained from such property is not to be included. Matter of Vassar, 127 N. Y. 1. 479. Appraisal of Residuary Estate When Part Thereof Is Subject to Appointment. Where a testator gave his residuary estate to his executors in trust to pay the income to his widow for life, and upon her death gave certain specific bequests therefrom, after which the remainder was to go to a certain nephew, unless the widow exercised a power of appointment over $150,000 of the residue which she was empowered to do by a codicil to decedent's will, held, in assessing the tax upon the nephew's interest, that the sum over which the widow could exercise the appointment must be deducted in this proceeding. Matter of Field, 36 Misc. Rep. 279, 73 N. Y. S. 512. 480. Procedure in Appraising Trust Fund Passing by Exercise of a Power of Appointment. Where a donee of a power exercises the same by her will the practice has been for the appraiser to include and appraise the funds passing under the appointment in the proceeding instituted for the appraisal of the donee's individual estate, for the reason that the appraiser is to appraise all the property passing under the decedent's will, the statute providing that "such appointment when made shall be deemed a taxable transfer in the same manner as though the property Property administered in Another State. § 230 to which such appointment relates belong absolutely to the donee of such power and had been bequeathed or devised by such donee by will." In proceedings on the estate of Gertrude L. Lowndes to determine the transfer tax upon the fund passing under a power of appointment given Annie L. Chase, one of the daughters of decedent, who died a resident of Connecticut leaving a will whereby she exercised the appointment, Surrogate Beckett held that the proceedings should be entitled "In the matter of the Transfer Tax upon the Trust created by the will of Gertrude L. Lowndes, deceased, for the benefit of Annie L. Chase and her appointees or heirs." Matter of Lowndes, 60 Misc. Rep. 506. The fact that the donee of the power was a nonresident may have been the reason for the surrogate holding that the proceedings should be entitled as above stated, as no proceedings were pending at that time upon the property of Annie L. Chase within this State, but it would seem that the former practice of entitling the proceedings in the name of the donee of the power, who for the purpose of imposing the proper transfer tav is deemed to be the owner thereof is the proper one, and is fully warranted both by the statute and the decision of the Court of Appeals in Isham v. New York Ass'n for the Poor, 78 App. Div. 396, 79 N. Y. S. 1048; affd., 177 N. Y. 218, and the Matter of Seaver, 63 App. Div. 283, 71 N. Y. S. 544. 481. Procedure Where Part of Decedent's Property Was Administered in Another State and Such Decedent Was Subsequently, and while Proceedings Were Pending George W. Cummings died August 28, 1904, at Banff, Northwest Territory, Canada, leaving a will wherein § 230 Property Administered in Another State. he appointed the Merchants' Loan and Trust Co. of the city of Los Angeles executor of his California property, and the Farmers' Loan and Trust Co. of New York city executor, " to administer the property "to of which I may die possessed in the State of New York or elsewhere." Shortly after his death a proceeding was brought in the Superior Court of Los Angeles, Cal., for the probate of his will. That court decided that the decedent was a resident of the State of California; that certain provisions of the will creating trust funds were invalid, and that that part of the property which was located in California and designated in the will as constituting a part of the trust fund should be distributed to his next of kin in accordance with the intestate laws of California. The property located in California was subsequently distributed among decedent's next of kin in the manner provided by this decree and in the proportion prescribed by the intestate laws of California. In 1906 the Farmers' Loan and Trust Co. aforesaid began an action in the Supreme Court of this State for a construction of the will, and the decree entered therein adjudged that the decedent was a resident of this State at the time of his death, and also that the trusts attempted to be created by his will were void under our laws, so that the decedent died intestate, as to any valid disposition of his property and under the intestate laws of this State his property passed to his father as his heir-at-law and next of kin. Some time prior to this decision of the Supreme Court, the New York executor had commenced transfer tax proceedings before the surrogate of New York county alleging in the petition therein that the decedent was a resident of California at the time of his Property Administered in Another State. § 230 death. These proceedings were continued before the appraiser after the decision of the Supreme Court of this State declaring the decedent a resident and the trusts under this will void, and testimony was offered before the appraiser showing that the property of decedent wherever situated amounted to $185,634.95, of which $84,309.55 was within this State. The appraiser included all the property of decedent as subject to the transfer tax on the ground that the decedent had been declared by a court of competent jurisdiction a resident of this State, and a tax of one per cent. was imposed thereon. The executor appealed on the ground that the property in California was not subject to taxation, and further, that if there was any right to assess a tax under the laws of this State, such rights were barred by the decree of the court of California admitting his will to probate as a resident of that State, and that said tax was in violation of the Constitution and laws of the United States. The surrogate reversed the taxing order, holding: 66 # A tax * * section 220 of the Transfer Tax Law provides: shall be and is hereby imposed upon the transfer of any property first, when the transfer is by will or by the intestate laws of this State from any person dying seized or possessed of the property while a resiIdent of this State.' Before the tax can be imposed there must be a transfer of the property either by will or by the intestate laws of this State. Assuming, in accordance with the decision of the New York Supreme Court, that the decedent was a resident of this State, if that part of his personal property which was situated in California passed or was transferred to his next of kin by virtue of the intestate laws of this State such a transfer would be taxable here (Matter of Swift, 137 N. Y. 77). But at the time the New York court decided that he was a resident of this State the property located in California had already been distributed under and by virtue of a decree of a court of competent jurisdiction in that State and in the proportion prescribed by the intestate laws of that State. The property having already been actually transferred under the intestate laws of the State of California there was no property there which could be transferred under the intestate laws of this State. The theory that the property passed under the intestate laws of this State must give way to the fact that it was |