Opinion
March, 1916.
Geller, Rolston Horan, for executors.
Lafayette B. Gleason (Schuyler C. Carlton, of counsel), for state comptroller.
This appeal from the order assessing a tax upon the estate of the decedent brings up for review the following questions: First, whether the executor and trustee is entitled to commissions in each capacity; second, whether a bequest to the Vivisection Investigation League is subject to a transfer tax. The testatrix gave to the Farmers' Loan and Trust Company the sum of $40,000 in trust to pay the income to certain life tenants mentioned in the will, and after their death to pay the corpus of the trust fund to the remaindermen. She also gave the Farmers' Loan and Trust Company in trust the sum of $60,000, to pay the income to certain beneficiaries during their respective lives, and to pay the remainder to the persons designated in her will. The Farmers' Loan and Trust Company has qualified as executor of the will, and contends that it is entitled to commissions as executor and also to commissions as trustee upon the bequests above mentioned. It is the duty of the executor to collect the assets of the estate and to make the payments directed by the testatrix in her will. The Farmers' Loan and Trust Company, as executor of the estate, must therefore take possession of the assets of the estate and pay over to itself as trustee the amounts above mentioned. As trustee it has no title to the property until it has been paid over to it by the executor. It is therefore entitled to commissions as executor for receiving and paying out the entire assets of the estate, and it is also entitled to commissions as trustee for receiving the trust funds of $40,000 and $60,000, respectively. Layten v. Davidson, 95 N.Y. 365. The appraiser therefore erred in refusing to deduct the trustee's commissions from the assets of the estate. The testatrix bequeathed the sum of $5,000 to the Vivisection Investigation League. The charter of this corporation shows that it was organized for "the investigation of the practice of vivisection both upon animals and upon human beings," and "carrying on any work for the purpose of rousing public sentiment against the evils of vivisection." Section 221 of the Tax Law provides that property bequeathed to any "religious, educational, charitable, missionary, benevolent, hospital or infirmary corporation" shall not be subject to taxation. Even assuming for the purpose of this application that investigations of the practice of vivisection may result in remedying certain of the evils alleged to be connected with that practice, or in ameliorating the conditions under which experiments are made, I do not think that a corporation engaged in making such investigations can be regarded as charitable or benevolent within the ordinary meaning of those words. I am therefore inclined to think that the Vivisection Investigation League is not embraced within the classification of exempt corporations under section 221 of the Tax Law, and that the bequest to it is not exempt from taxation. The appeal on this point is dismissed. The order fixing tax will be reversed, and the appraiser's report remitted to him for the purpose of allowing commissions as executor and trustee on the sums of $60,000 and $40,000 bequeathed to the Farmers' Loan and Trust Company in trust.
Order reversed.