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People ex Rel. Kight v. Lynch

Appellate Division of the Supreme Court of New York, Third Department
Mar 1, 1930
228 App. Div. 861 (N.Y. App. Div. 1930)

Opinion

March, 1930.


The relator by the last will and testament of her deceased husband received an income from a trust estate created by said will. It was provided that such income should be in lieu of dower, and the widow so accepted it. This in legal effect was a purchase of an annuity. ( Isenhart v. Brown, 1 Edw. Ch. 411, 413; Warner v. Walsh, 15 F. [2d] 367.) Such income, at least where the value is not grossly disproportionate to that of the property relinquished, is not taxable until her capital investment is returned to her. ( Warner v. Walsh, supra; United States v. Bolster, 26 F. [2d] 760; Allen v. Brandeis, 29 id. 363.) Practical reasons suggest that there should not be contradictory rules relating to the same income; and sound reasoning supports the doctrine adopted in the Federal courts. The Tax Commission was in error in holding the annuity taxable; and the relator is entitled to the refund of taxes erroneously paid in the period referred to in the petition. The determination should be annulled with fifty dollars costs and disbursements. Hinman, Acting P.J., Davis, Whitmyer, Hill and Hasbrouck, JJ., concur. Determination annulled, with fifty dollars costs and disbursements.


Summaries of

People ex Rel. Kight v. Lynch

Appellate Division of the Supreme Court of New York, Third Department
Mar 1, 1930
228 App. Div. 861 (N.Y. App. Div. 1930)
Case details for

People ex Rel. Kight v. Lynch

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. FLORENCE C. KIGHT, Relator, v…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 1, 1930

Citations

228 App. Div. 861 (N.Y. App. Div. 1930)