Opinion
May 21, 1909.
Millard H. Ellison, for the appellant.
Frank W. Arnold, for the respondent.
The deceased died in the city of New York, leaving a small amount of money in a savings bank, and, so far as appears, no widow or next of kin in this State. It appeared that he was a native of Sweden, but inquiry has failed to disclose any knowledge of him, his family or next of kin. Letters of administration were issued to the public administrator, whereupon the Comptroller of the State of New York applied to the surrogate to have an appraisal of the property subject to a transfer tax. The surrogate, after reciting that the property was in the hands of the administrator and that the next of kin of the decedent were unknown, and the amount of the taxes unknown, ordered that taxation upon the shares of the persons entitled to a share of the decedent's estate is and the same hereby is suspended until such time as the persons entitled thereto are discovered and ascertained. From that order the Comptroller appeals. The Comptroller claims that this property can be collected under the Tax Law (Laws of 1896, chap. 908, § 230, as amd. by Laws of 1897, chap. 284, and Laws of 1899, chap. 76). I do not think that this section applies. Upon the death of the decedent his personal property vested in the administrator, and his next of kin were entitled to the property upon proving their relationship to the deceased. No such person has appeared and no such person has been found to be in existence. There has been no transfer "dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged." Matter of Vanderbilt ( 172 N.Y. 69) had relation to a trust estate in which the ultimate beneficiaries were uncertain, and what is said in that case relates to such an estate. The only uncertainty as to the ownership of this property depends upon the fact as to whether the deceased left next of kin. The presumption is that the deceased left next of kin, but there is no presumption that he left a widow or descendants. It is presumed, therefore, that the property vested in the next of kin of the deceased, and is, therefore, taxable under section 220 of the Tax Law (as amd. by Laws of 1897, chap. 284), and as it does not appear that it is exempt under section 221 of the Tax Law (as amd. by Laws of 1903, chap. 41), the tax imposed by subdivision 6 of section 220 (as amd. supra) applies and it is taxable at the rate of five per centum.
The order appealed from should be reversed and the property of the decedent taxed at the rate of five per centum, with ten dollars costs and disbursements of this appeal to be paid out of the estate.
McLAUGHLIN, LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements to be paid out of the estate, and proceeding remitted as directed in opinion.