Opinion
December 30, 1957
Present — Beldock, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ. [ 7 Misc.2d 676.]
On June 12, 1930 decedent died, leaving a will and codicils which, among other things, set up a trust fund of $100,000 for a grandson, with income payable to him until he reached the age of 30, at which time he was to receive the principal. Provision was made for the remainder to go to others if the grandson did not reach the age of 30. On February 19, 1932 the Surrogate fixed the value of the grandson's life interest at $63,284 and the value of the contingent remainder at $95,960. The tax on the life interest was fixed at $1,015.68 and was paid. On July 1, 1955 the grandson became 30 years old and the principal of the trust fund vested in him. On September 27, 1955, on motion of the successor trustee and without opposition from the State Tax Commission, the Surrogate fixed the tax on the $95,960 value of the remainder at $1,669.20. After the time to appeal from that order had expired, the State Tax Commission moved to modify the order of September 27, 1955 so as to increase the tax to $2,511.64. The successor trustee appeals from the order of the Surrogate's Court, Westchester County, granting that motion. Order unanimously affirmed, with $10 costs and disbursements to respondent, payable out of the estate. Where the life beneficiary receives the contingent remainder on reaching a certain age, the transfer tax under article 10 of the Tax Law is properly computed at the highest rate specified in the statute on the combined total value of the contingent remainder plus the life interest, less credit for the tax paid on the value of the life interest alone. ( Matter of Klein, 262 App. Div. 997.) The error in the fixation of the tax by the order of September 27, 1955 was not a judicial error of law and was, therefore, subject to correction. ( Matter of Leeds, 280 N.Y. 619.)