Surrogate's Court, New York County, December, 1921. [Vol. 117.

Lawton v. Corlies, 127 id. 100, 108; Matter of Devoe, 171 id. 281. Furthermore, the testator plainly shows that the widow is not to be included in the term "relatives" by limiting her share to the specific sixty per cent. If it were determined that she were included in that term, she would share equally with the testator's brothers and sisters in the balance, which was not the intention of the testator. The bonds and jewelry are given absolutely to the widow. This legacy is in addition to the sixty per cent of the real and personal property.

The widow is not entitled to dower in the testator's real estate in addition to the provisions made for her by his will. Dower is favored by the law, and unless it is excluded by express terms or necessary implication the widow is not put to an election. In this will it is not excluded by express terms but if the widow is allotted dower in addition to the bequest and devise to her, it will destroy the scheme of the will, which is to divide the testator's estate between his widow and his relatives in the ratio of sixty to forty. Such ratio cannot be preserved if, in addition to the sixty per cent, the widow is to have dower. The provisions of this will are inconsistent with the widow taking dower, and she is therefore put to her election. Wilson v. Wilson, 120 App. Div. 581, and cases cited therein; Matter of Gorden, 172 N. Y. 25.

Submit decree on notice, construing the will accordingly and settling the account.

Decreed accordingly.

Misc.] Surrogate's Court, Queens County, December, 1921.

In the Matter of the Taxation under the Acts in Relation to Taxable Transfers of the Property of CHARLES KIERSTEAD MEYER, Deceased.

(Surrogate's Court, Queens County, December, 1921.)

Transfer tax

non-resident

-law of domicile governs succession to personal property — when bonds and notes of New York corporation not taxable under section 220 (2) of the Tax Law, as amended.

The right of succession to personal property is governed by the law of the domicile of the owner at the time of his death. Where decedent, who died intestate a resident of the state of California, at the time of his death there was the owner of and had in his possession certain bonds and promissory notes of a New York corporation whose principal asset was real property in this state, upon which said bonds and notes were not in any way a lien, and it also appeared that a tax under the Inheritance Tax Law of California had been assessed and paid upon said bonds and notes, which have not since the death of decedent come into the state of New York, they are not subject to a transfer tax here under section 220(2) of the Tax Law, as amended.

APPEAL from order assessing transfer tax.

Kellogg & Street, for administratrix.

Robert Wickert, for State Tax Commission.

NOBLE, S. The administratrix of Charles Kierstead Meyer, deceased, appeals herein from an order dated June 10, 1921, fixing and assessing a transfer tax upon the property of said decedent.

It appears that said decedent was a resident of the state of California and died in that state, intestate, on May 16, 1916.

He left an estate consisting of real and personal

Surrogate's Court, Queens County, December, 1921. [Vol. 117.

property, the real property in this state being located in Newtown, Queens county, appraised at a value of $20,000 and tax assessed on such valuation.

From this assessment there is no appeal and the question before me is the right of the state of New York to tax certain bonds and promissory notes of the Ivanhoe Company, a domestic corporation, which were owned by the decedent at the time of his death. The proof shows that the principal asset of the Ivanhoe Company consists of real property in this state, but there is no proof that the bonds or promissory notes are secured by any mortgage or are in any way made a lien upon such real property.

It is admitted that decedent was a resident of the state of California at the time of his death, and that said bonds and promissory notes were in his possession in California at that time, and have not since come within the state of New York. It also appears that a transfer tax under the inheritance tax law of the state of California has been assessed and paid upon said bonds and notes in that state.

The administratrix claims that the decedent, not having been a resident of the state of New York at the time of his death, and none of said bonds or promissory notes having come within the state of New York, they are not taxable, and the order assessing the tax upon them is erroneous and should be vacated.

In support of this contention, the attorney for the administratrix relies almost entirely upon the decisions in Matter of Bronson, 150 N. Y. 1, and the decision of the Appellate Division, first department, in Matter of Barbour, 185 App. Div. 445; affd., without opinion, 226 N. Y. 639.

Had the law at the time of the death of the decedent herein been as it was when the Bronson case was

Misc.] Surrogate's Court, Queens County, December, 1921.

decided (October, 1896), I should have no hesitancy whatever in following the law as therein laid down and holding that the bonds and promissory notes were not taxable in this state.

Subsequent to the time of that decision, however, and before the death of the decedent herein, the Tax Law of this state was amended and the part pertaining to the issue herein reads as follows:

66

"§ 220. 2. When the transfer is by will or intestate law, of tangible property within the state or of any intangible property, if evidenced by or consisting of shares of stock, bonds, notes or other evidences of interest in any corporation, joint-stock company or association wherever incorporated or organized, and the property represented by such shares of stock, bonds, notes or other evidences of interest consists of real property which is located, wholly or partly, within the state of New York, or of an interest in any partnership business conducted, wholly or partly, within the state of New York, in such proportion as the value of the real property of such corporation, joint-stock company or association, or as the value of the entire property of such partnership located in the state of New York bears to the value of the entire property of such corporation, joint-stock company or association or partnership, and the decedent was a nonresident of the state at the time of his death; or when the transfer is by will or intestate law of capital invested in business in the state by a non-resident of the state doing business in the state either as principal or partner."

Counsel for the respondent contends that the promissory notes and bonds in question are taxable under subdivision 2 of section 220 as above amended. In my opinion the question resolves itself into whether or not the legislature of the state of New

Surrogate's Court, Queens County, December, 1921. [Vol. 117.

York had the power to tax the succession in the ownership of the bonds and promissory notes arising through the death of the owner, under the circumstances heretofore stated. It cannot be presumed that the legislature intended to exceed its power, and the statute must be so construed as to avoid that result if possible.

Matter of Barbour, 185 App. Div. 445, was decided after the passage of the act above mentioned, but that case hinged practically upon the question of the domicile of the deceased, and the court held that it had been shown that he was a bona fide resident of the state of New Jersey, and the personal property in question having been physically held by him in that state it was improper to assess a tax upon it.

The transfer tax is a tax on the right of succession to the title of real or personal property arising through the death of the owner. The right of succession to real property is governed by the laws of the state in which it is situated, but such right as to personal property is governed by the law of the domicile of the owner at the time of his death.

As to this, Merrell, J., in Matter of Barbour, supra, citing, with approval, Matter of Embury, 19 App. Div. 214; affd., 154 N. Y. 746, says: "The right of the State to tax the estate of a deceased resident is upon the ground that by the favor of the State a right of succession in such property is accorded, and having granted such privilege of succession the State has the undoubted right to curtail the same by taxation, and so, appropriating a part of the estate with which to bear the expenses of the government under whose protection the estate has been accumulated and has existed. Unquestionably real property situated within the State owned by a non-resident is subject to taxation, as the property itself is here. And so, too,