Edward A. Alexander, for petitioner.

FOLEY, S. This is an application for the construction of the will of the above named testator in so far as it relates to the right of the widow of the deceased to obtain a dower interest in his estate. Paragraph second of the will reads as follows:

"Second. I give, bequeath and devise unto my beloved wife Lina Moeller absolutely during her natural life, the full, free and unrestrained use of my property, real, personal and mixed, wheresoever situated. I also give unto my said wife full power of sale of any of my said property described aforesaid during her natural life, and direct that any moneys so received by her shall be reinvested by her or by her and my executors hereinafter named, should it become legally necessary to first obtain said signature therefore, in such securities as the laws of New York permit an executor and trustee of an estate to invest. And I empower my said wife to reinvest such funds so received in any other securities which she may deem judicious, subject, however, to the consent of my nephew and executor hereinafter named, Mr. Henry M. Moeller."

Upon the death of the widow, the remainder is given to various relatives.

The interest of the widow under the provisions of this will is a legal life estate in all of the testator's property. There was no express direction that the gift to the widow was in lieu of dower. No trust was created. The claim of dower by the widow is not therefore inconsistent with the testamentary provisions for her benefit. Lewis v. Smith, 9 N. Y. 502; Konvalinka v. Schlegel, 104 id. 125, 129; Purdy v. Purdy, 18 App. Div. 310; Horstmann v. Flege, 172 N. Y. 381; Matter of Springsteen, 86 Misc. Rep. 389; Matter of Bloss, 100 id. 643. She is not required to

elect (Real Property Law, § 200), and is, therefore, entitled to her dower in the real property.

The contention of the petitioner that the widow is entitled to the profits on the sale of the premises 68 West Ninety-sixth street is erroneous. The widow is entitled to income only and is without power to invade the principal. Therefore the profit of $6,394.90 realized from this sale must be deemed to be capital and not income. This sum should be reinvested as directed by the terms of the will.

Decreed accordingly.

Matter of the Estate of ISAAC WALKER, Deceased.

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

Surrogate's Court ·real property of non-resident within jurisdiction -- power to fix bonds of testamentary trustees Decedent Estate Law, 44, as amended in 1921— Surrogate's Court Act, 171.

APPLICATION to fix bond of testamentary trustee.

Leigh K. Lydecker, for petitioner.

FOLEY, S. The petition is entertained. This court has jurisdiction to fix the bond of resident testamentary trustees appointed by a will admitted to probate in England and recorded in this office as provided in section 44, Decedent Estate Law (as amended by chapter 293, Laws of 1921), where the trust consists of realty within this county. The authorities holding that the Surrogate's Court has not jurisdiction of trusts created by the will of a non-resident have all recognized the jurisdiction of this court where there was real property in the corpus of the trust located in this state. People ex rel. Safford v. Surro

gate's Court, 229 N. Y. 495; Matter of Hoyt, 103 Misc. Rep. 614; Matter of Yuill, 109 id. 465; Surrogate's Court Act, § 171. As the petition alleges there is some uncertainty whether Frank W. Arnold, named as a co-trustee, will qualify, a citation should issue to him, or his renunciation filed. Bond fixed in the penal sum of $120,000.

Ordered accordingly.

Matter of the Estate of ANDREW CARNEGIE, Deceased. (Surrogate's Court, New York County, November, 1921.)

Transfer tax no deduction for federal estate tax -tenancy by entirety taxable at one-half value- pensions created by unrevoked deed of trust not taxable - Decedent Estate Law, § 17.

APPEALS from order fixing transfer tax.

Root, Clark, Buckner & Howland, for executor.

Lafayette B. Gleason (Schuyler C. Carlton, of counsel), for state tax commission.

FOLEY, S. Cross-appeals have been taken by the estate and the state tax commission from the order fixing transfer tax. The executor appeals on the ground that the federal estate tax has not been allowed by the appraiser as a deduction. The decision of the Court of Appeals in Matter of Sherman, 222 N. Y. 540, sustains the action of the appraiser and the appeal is denied.

The state tax commission appeals upon the following grounds, first, that the transfers of certain parcels of real property held by the decedent and his wife as tenants by the entirety should be taxed; second, that the failure to impose a tax on the value of the life

interests in the pension funds established by Mr. Carnegie was error; and third, that the method adopted by the appraiser in his computation of the amounts. passing to certain charitable corporations and to the widow was erroneous.

The appeal of the state upon the first ground is sustained, and the order will be modified so as to provide for a tax upon the value of one-half of the real estate involved.

Andrew Carnegie died August 11, 1919. In 1898 and 1899 various parcels of real estate in New York city were conveyed to him and his wife, thereby creating in them a tenancy by the entirety. Bertels v. Nunan, 92 N. Y. 152; Hiles v. Fisher, 144 id. 306. Until the amendment of section 220, subdivision 7, of the Tax Law, made by chapter 323 of the Laws of 1916, the transfer of this form of property was free from tax. By that statute the tax was specifically imposed upon the transfer to the survivor in the following language: 'the right of the surviving tenant by the entirety to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the whole property to which such transfer relates belonged absolutely to the deceased tenant by the entirety

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The executor contends that the surviving widow takes under the original conveyance by which the tenancy was created and that no transfer took place at the death of the decedent. The authorities in this state have greatly modified the attributes of the common law tenancy by the entirety. By reason of the enactment of the Married Woman's Property Acts by our legislature, the husband and wife are now tenants in common with equal rights in the rents and profits and with the right of survivorship. Matter of Goodrich v. Village of Otego, 216 N. Y. 112, 117; Hiles v.

Fisher, supra; Grosser v. City of Rochester, 148 N. Y、 235. The respective rights of the husband and wife in this form of title and the taxability of the transfer in the estate of the spouse first dying are clearly set forth by Mr. Justice Putnam in Matter of Moebus, 178 App. Div. 709. The facts there were exactly the same as those in Mr. Carnegie's estate, viz., creation of the tenancy before the passage of the act of 1916 and death after its enactment. The contention of the executor that the decisions of the first department differ from those of the second department in Matter of Moebus is unfounded. In Matter of Horler, 180 App. Div. 608, the court held that a similar transfer in 1915 was free from tax, but the death there occurred previous to the amendment of 1916, which enlarged the scope of section 220, subdivision 7, and specifically included real estate and other tangible property. In his opinion Mr. Justice Shearn pointed out that where the death occurred after that amendment the estate would be taxable, for he states: "The situation presented in this case is one that cannot arise in the future, for the Legislature of 1916 defined such a succession of interest as occurred on the death of Mary Horler to be a taxable transfer. Counsel for the state comptroller cites Matter of Moebus, 178 App. Div. 709; but while that case dealt with a tenancy by the entirety and held the succession taxable, the decision was based, and necessarily so, on the 1916 amendment (Chap. 323), which was in effect prior to the death of the cotenant.'

Whether the transfer to the survivor be regarded as the jus accrescendi, or the termination of the right of the deceased cotenant to one-half the rents and profits, or the elimination of his interest in the entire fund, a succession of interest does take place at the death of the first cotenant and the legislature has, within its powers of taxation, expressly declared that