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light definite, fixed punishments provided by the various penal statutes when the sentence is to the penitentiary must for that particular instance be deemed modified. I think this legislation has been fully upheld in People ex rel. Cerozsie v. Warden, 223 N. Y. 307, including the possible increased punishment permitted under it, for in that case, as at bar, the conviction was for assault in the third degree (see Court of Appeals record), and although the discussion there proceeded on the proposition of whether or not the law was ex post facto, yet that question could hardly have been decided as it was without an approval of the power to imprison as provided in the Parole Commission Act. The court says (p. 311): "In our opinion the statute in a real as well as in a technical and legal sense was in force at the time when the relator committed his crime and forewarned him of the punishment which he might expect. As has been pointed out, it outlined a system of punishment such as has been inflicted upon him and it provided that in case he should be convicted after a commission had been appointed for administering the provisions of said statute he should be punished in accordance with its terms. Thereby it was indicated and he was fully warned before he committed his crime that in the city of New York there might at any time be adopted an altered form of punishment, which would be applied to him if he was convicted after its adoption." It is said that the Parole Commission Act, if literally followed, establishes different punishments in different parts of the state for the same offenses (People ex rel. White v. Comm'r., etc., N. Y. L. J., Aug. 31, 1921), and that the act should, therefore, be limited to the periods of imprisonment elsewhere specifically prescribed. I do not think this view should obtain, as it was competent for the legislature, in my opinion, to prescribe a different or greater punishment for the same offense in cities of the first class than in

other parts of the state. In People ex rel. Armstrong v. Warden, 183 N. Y. 223, 226, the court says: " Criminal laws are not necessarily unconstitutional even if they bear unequally upon persons in different parts of the state. The evil which the legislature may have in view in passing such laws may exist only in the great cities of the state and have no existence in rural districts." And in Matter of Morgan, 114 App. Div. 45, 54, it was said: "It has been held many times in this State that the Legislature had the power to discriminate between different parts of the State by requiring things to be done in one section of the State which were not required in another, and to make acts crimes in certain portions of the State which were not crimes in the rest." See, also, People v. Havnor, 149 N. Y. 195. The writ should be dismissed and the relator remanded.

Writ dismissed.

Matter of the Estate of DELLORA C. GATES, Deceased.

(Surrogate's Court, New York County, October, 1921.)

Transfer tax

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will of decedent admitted to probate in Texas where estate was taxed — declarations of decedent and her supporting acts and conduct sustain finding that she was a nonresident of the state of New York at her death.

TRANSFER tax proceedings.

Humes, Smith & Tweed, for executors.

Charles M. Travis, for state tax commission.

Robert H. Thorburn in person.

FOLEY, S. In this proceeding the question to be determined is the residence of the decedent. The

state tax commission contends she was a resident of the state of New York. The estate contends she was a resident of Port Arthur, state of Texas. I find she was a nonresident of this state.

Mrs. Gates died on November 28, 1918. She was the widow of John W. Gates, who died August 9, 1911. Mr. and Mrs. Gates established their residence in Texas about the year 1908. They spent substantial portions of each subsequent year together at Port Arthur, and also maintained an apartment at the Hotel Plaza in New York city. After his death she continued her mode of living in the same manner that she and her husband had lived during his lifetime, dividing her time between her home in Texas, the hotel in New York, and traveling. "A widow, in the absence of adequate proof to the contrary, retains the last domicile of her husband." Matter of Green, 99 Misc. Rep. 582; affd., 179 App. Div. 890. In the transfer tax proceedings begun shortly after John W. Gates' death, the order of my learned predecessor, Surrogate Fowler, taxed his estate as that of a resident in Texas. In that proceeding the allegations in the petition of the executors of Mr. Gates, as to his nonresidence, were not denied by the state comptroller. Under former section 2546 of the Code of Civil Procedure (now Surrogates' Court Act, § 76), the uncontroverted petition was due proof of the facts therein stated. In 1918 the state comptroller applied to reopen the original transfer tax proceedings in John W. Gates' estate and to vacate the order fixing tax on the ground that the decedent was a resident, and prayed for the determination of that issue. The supporting papers on that application set forth many of the salient facts contained in the record here. The matter was heard by Surrogate Fowler. In his opinion he states as follows: "A previous state administration instituted a proceeding to assess a tax upon the estate

of the decedent, investigated the question of his last domicile, and was apparently satisfied that his last domicile was in Texas. It should be a very plain case which would authorize a successor administration to repudiate, so long afterwards, the action of its predecessor in office. Such a case has not been made by the petitioner herein. There is no proof of fraud; there is no evidence submitted on this application, which could not with due diligence have been obtained and submitted in the original proceeding; while the alleged new evidence is so inferential and inconclusive that even if offered on the trial it would not warrant a finding that the decedent had his last domicile in this state. The papers, therefore, are insufficient to warrant the court in granting a new trial of the question of decedent's domicile at the date of his death. Application denied." Matter of Gates, 103 Misc. Rep. 465, 470. The final order denying the application was made June 17, 1918, and an appeal therefrom was subsequently dismissed. The original order, therefore, has been long acquiesced in by the state of New York as a determination that the husband was a resident of Texas.

But independent of that decision, the declarations of Mrs. Gates and her supporting acts and conduct for many years prior to her death amply justify the finding of non-residence. In her declarations, written and oral, without exception, for a period of ten years, she described herself as a resident of Texas. She took a deep interest in Port Arthur's welfare and upbuilding. Her will was admitted to probate in Texas and her estate has been taxed there as a resident of that state. In my recent decision in Matter of Frick, 116 Misc. Rep. 488, I discussed the general tests of domicile and the authorities of this state applicable to the determination of that question. Dupuy v. Wurtz, 53 N. Y. 556; Matter of Newcomb, 192 id. 238;

Matter of Mesa y Hernandez, 172 App. Div. 467; United States Trust Co. v. Hart, 150 id. 413. In my opinion the effect of section 243 of the Tax Law creating a disputable presumption of residence was likewise discussed. Matter of Barbour, 185 App. Div. 445; affd., without opinion, 226 N. Y. 639. The facts here are not so clear in favor of the estate as those in Matter of Frick, supra, and are more similar to those in Matter of Harkness, 183 App. Div. 396, or Matter of Green, supra. Counsel for the state tax commission contend that the course of decedent's conduct indicates a deliberate design, under advice of counsel, to escape any legal inference of a New York residence. While such a course of conduct is indicated in the evidence, it does not follow that this excess of zeal destroyed a domicile legally established and actually continued with the requisite elements of intent and supporting facts.

I find that the proofs and exhibits in the voluminous record here repel and overcome the statutory presumption.

The application of Robert H. Thorburn to intervene is denied. He has no status in this proceeding. Submit order remitting the matter to the appraiser to proceed accordingly.

Ordered accordingly.

Matter of the Estate of EDWARD MOELLER, Deceased.

Wills

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(Surrogate's Court, New York County, October, 1921.)

life estate to widow not stated to be in lieu of dowerelection not required - Real Prop. Law,

entitled to income.

PROCEEDING for construction of will.

200-when only

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