Opinion
December, 1898.
Edgar J. Levey for comptroller.
George E. Gartland, for beneficiary.
Thomas A. McKennell, special guardian.
By an order heretofore entered herein, the value of the interest of the life-tenant and the tax thereupon were fixed. By the provisions of the will a vested indefeasible remainder, after the life interest mentioned, was created. The value of that interest was found by the appraiser, but the order entered declared that "said remainder estate is at present undeterminable, and not now subject to tax, but will become so upon the death of said Anna K. Bogert." Thereafter, the executrix paid the amount of the tax upon the life estate to the comptroller and obtained receipt therefor. Subsequently, the comptroller filed a notice of appeal from so much of the order as stated that the remainder was not now subject to tax, and duly served the same upon the executrix and the special guardian for the infant remainderman. The notice of appeal was returned with the reason therefor stated in the following indorsement: "That the comptroller of the city of New York, in whose behalf said notice purports to be served, is estopped and precluded from appealing from the order mentioned in said notice by reason of the fact that he has accepted, received and retained the tax directed to be paid therein, and has acquiesced in the directions and provisions thereof." This objection to the hearing of the appeal was urged upon the argument thereof. The point is without merit. While, for convenience, the tax upon the separate interests passing under the will are included in a single order, the judgments, nevertheless, are separate and independent. The rights and obligations of the different beneficiaries are disconnected and in no way mutual or joint. The grave injustice which would result from upholding the contention of the respondents will appear when we consider the effect upon the other legatees if the comptroller were required to decline payment by beneficiaries who had no ground to complain against the order entered as against them, because it was necessary to do so in order to preserve his right to appeal from other portions of the order as to which there was doubt. Interest, and possibly penalty, might be held to run against the tax so declined, and in that way beneficiaries having no interest whatever in the litigation would be impeded in the collection of their legacies, the administration of the estate would be hindered and expense unnecessarily incurred. This objection is overruled. Upon the merits of the controversy I must uphold the claim of the comptroller. The case at bar is on all fours with my decision in the Matter of Lange, N.Y. Law Journal, October 26, 1895. The appeal is sustained. A new order may be submitted fixing the tax upon the remainder in accordance with the appraiser's report.
Appeal sustained.