Opinion
August, 1893.
Duncan Smith, for executrix, Susan M. Warren.
The act of 1892 imposed a tax upon the transfer of property by will, as in this case. The act further provides for the appointment of an appraiser to fix the fair market value, at the time of the transfer thereof, of property of persons whose estates shall be subject to the payment of any tax imposed by the act. By the 22d section, it is declared that the words "estate" and "property," as used in the act, shall be taken to mean the property or interest therein of the testator, etc., passing or transferred, and not as the property or interest therein passing or transferred to individual legatees, etc. It would, therefore, seem that the appraiser's duty was ended when he fixed the value of the property therein of the testatrix at the time when the transfer took effect. By deducting the items for funeral expenses, expenses of administration and commissions, he not only exceeded the power delegated to him by the act and the order appointing him, but of fixing the value of the estates transferred when they would finally come into the hands of the legatees; and this, as we have seen, is contrary to the express provisions of the act. If this be a correct interpretation of the act, as it certainly seems to be, then if a husband die leaving his personal estate of $50,000 to his widow, and he was owing simple contract debts to the amount of $48,000, the appraiser should report the value of the property transferred, and the widow would be liable to be assessed by the surrogate the tax on the whole $50,000. The surrogate would give her notice thereof, and she would have the right to appeal therefrom. On such appeal it might be shown that the testator, after the payment of debts and funeral expenses, bequeathed the residue of his estate to his widow, and might show the amount of such debts and funeral expenses, when, doubtless, the surrogate would allow them to be deducted from the whole value as fixed by the appraiser, and the balance remaining would be the actual value of the property really transferred. The appraiser has no authority conferred upon him to ascertain the amount of debts the deceased owed.
The value of the one-half of the estate transferred to Mrs. Warren, and subject to the tax of one per cent, is, therefore, $17,482.48, and the value of that of which Mrs. Gould has the use for life is the same amount and subject to the like tax. Of course, the amount of the tax must be apportioned between the life beneficiary and the legatees in remainder. Her interest having been fixed at $10,175, she must pay one per cent of that sum. On $7,307.48, being the residue, the four children of Mrs. Gould must pay the tax, as on their interest in the remainder. Each one's share is, therefore, $1,827.