The appeal of the executors is sustained as to this matter, and the report will be returned to the appraiser accordingly. Settle order on notice. (Surrogate's Court, New York County. February 16, 1920.) TAXATION 893-PROOF THAT PERSONAL TAX WAS PAID ON INVESTMENT SECURITIES NECESSARY TO EXEMPT THEM FROM PAYMENT OF ADDITIONAL TRANSFER TAX. Where decedent died, leaving investment securities of the value of approximately $85,000, and where the only property liable to personal tax, except such securities, was a bank balance of approximately $5.000, the payment of personal tax for the year during which he died of $15,000 was not sufficient to entitle executors to a deduction of difference between bank balance and personal tax assessment from the value of the securities, in imposing the additional transfer tax under Tax Law, § 221b, in absence of a showing that the sum claimed as a deduction was the value of a particular investment on which personal tax was in fact paid, since the executor, to establish exemption from such taxes, must prove that the personal tax was paid on the particular securities sought to be exempted. In the matter of the estate of Solomon Reiss. From an order entered on the report of transfer tax appraisers, the executors appeal. Affirmed. Adolph & Henry Bloch, of New York City, for appellants. FOLEY, S. The executors of the above-named decedent appeal from the order entered on the report of the transfer tax appraiser on the ground hereinafter stated. The decedent died January 21, 1919, leaving investment securities which the transfer tax appraiser values at the sum of $85,823.52. It appears that the decedent was assessed for personal taxes for the year 1919 in the sum of $15,000, and that the tax was paid by one of the executors of his estate in the month of May, 1919. On the date when the personal tax was due the only property of the decedent liable to the tax, except the securities above referred to, was a bank balance of $5,695.92. The executors contended before the transfer tax appraiser that the sum of $9,304.08, being the difference between the bank balance and the personal tax assessment, should be deducted from the appraised value of the securities in fixing the tax imposed by section 221b of the Tax Law (Consol. Laws, c. 60). The claim was disallowed by the appraiser, and on the ground that he erred in this particular the executors have appealed. One of the conditions prescribed by section 221b, compliance with which relieves an estate from the payment of the 5 per cent. tax imposed by the section, is that the personal representatives prove that a personal tax was paid on the investments. This requirement cannot be met by inferences or conclusions. It must be shown that the tax was paid on the particular securities. Matter of Von Bernuth, 103 Misc. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (180 N.Y.S.) Rep. 522, 171 N. Y. Supp. 764; Matter of Belden, 189 App. Div. 417, 179 N. Y. Supp. 406; Matter of Mitchell, 180 N. Y. Supp. 874. The appellants have failed to sustain the burden placed on them by the statute. There is nothing in the record to show that the sum claimed as a deduction was the value of a particular investment or investments on which a personal tax was in fact paid. The order fixing tax is affirmed. In re MERRITT'S ESTATE. (Surrogate's Court, Westchester County. February 27, 1920.) 1. WILLS 439-TESTATOR'S INTENT TO GOVERN, IF CLEAR, REGARDLESS OF RULES OF CONSTRUCTION. Rules for construction of wills are for the sole purpose of ascertaining the intention of the testator, and the intention, if clear and manifest, must control, regardless of such rules; such rules not being hard and fast rules, like rules of property, to be applied rigidly in every case. 2. WILLS 441-FACTS, AND CIRCUMSTANCES TO BE CONSIDERED IN CONSTRUING WILL. In construing a will, a full knowledge is necessary of the facts and circumstances surrounding the testator in the making of the will, the relation he bore to his family, the scheme of his disposition, the nature and extent of his property, and his knowledge thereof. 3. WILLS 481-WILLS AND CODICILS SPEAK FROM TESTATOR'S DEATH. Wills and codicils speak from the testator's death. 4. WILLS 525-BEQUEST TO STOCKHOLDERS OF SUCH SHARES AS WILL VEST THEM EACH WITH OWNERSHIP OF "EQUAL" "NUMBER" OF "TOTAL" OUT STANDING STOCK CONSTRUED. Will bequeathing to "S. and D.," the two stockholders, who together with testator owned entire stock of corporation, "each, such a number of shares" of such corporation "of which I shall die possessed, which, with the total number of shares thereof they may then own or control, will vest them each with the ownership or control of an equal number of the then total outstanding capital stock," gave to each such a number of shares as would vest in each the ownership of an equal half of the total stock, and did not merely give to D., owning fewer shares than S. at testator's death, such a number of shares as would make his holding equal to that of S. at time of testator's death; the word "total" meaning whole, not divided, entire, full, complete, the whole amount; the word "equal" meaning even, sameness of quantity or degree, the same; and the word "number" being synonymous with ratio, proportion, requiring it to be read as though written "equal half or part." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Equal; Number; Total.] In the matter of the estate of James S. Merritt. Application by Emma S. Merritt, widow of testator, to construe certain portions of the last will and testament of James S. Merritt. Will construed. Moses Miller, of Port Chester, for executors and trustees. SLATER, S. This is an application on the part of Emma S. Merritt, widow of testator, to construe certain portions of the last will For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes and testanient of her husband. Except as to the present issue, all questions relating to the construction are held in abeyance until the judicial settlement of the executors' account. The present issue relates to paragraph 5, which is as follows: "5. I bequeath to Samuel Glock and David J. Kelly, Jr., of said village, each, such a number of shares of the capital stock of Austin & Merritt, Inc., located in said village, of which I shall die possessed, which, with the total number of shares thereof they may then own or control, will vest them each with the ownership or control of an equal number of the then total outstanding capital stock of said corporation, on condition, however, that for a period of one year from my death all dividends on my said stock be paid to my said wife." [1, 2] Rules for construction of wills are for the sole purpose of ascertaining the intention of the testator, and if the intention is clear and manifest it must control, regardless of all rules that have been formed for the purpose of determining their construction. Cammann v. Bailey, 210 N. Y. 19, 103 N. E. 824. Such rules are not hard and fast rules, like rules of property, to be applied rigidly in every case. Fulton Trust Co. v. Phillips, 218 N. Y. 573, 113 N. Ë. 558, L. R. A. 1918E, 1070. In construing a will, a full knowledge of the facts and circumstances surrounding the testator in the making of the will is necessary, the relation the testator bore to his family, the scheme of his disposition, the nature and extent of his property and his knowledge thereof. Ely v. Ely, 163 App. Div. 320, 148 N. Y. Supp. 691, affirmed Ely v. Megie, 219 N. Y. 112, 113 N. E. 800. Oral evidence was admitted to show the circumstances existing at the time of the making of the will in so far as the interest of the various parties in Austin & Merritt, Incorporated, were concerned. It was shown that Austin & Merritt, Incorporated, was a corporation engaged in real estate and insurance business and had existed for several years, that there were only three stockholders, viz. testator, who owned 34 shares, Samuel Glock, one of the executors, who owned 34 shares, and David J. Kelly, Jr., who owned 32 shares, making in all 100 shares, which was the entire capital stock. It is the contention of Mrs. Merritt that the will gave but 2 shares to David J. Kelly, Jr., so that he would own 34 shares, equal to Samuel Glock's 34 shares, and the estate would hold 32 shares. The executors contend that paragraph 5 gave the entire 34 shares belonging to testator in the following amounts: Eighteen shares to David J. Kelly, Jr., and 16 shares to Samuel Glock, so that, with the shares which they formerly owned each would own and control one-half of the total outstanding stock of Austin & Merritt, Incorporated. There are no other paragraphs in the will which throw any light whatever on the particular paragraph under consideration. We are therefore compelled to construe the paragraph practically from the wording of the paragraph itself. At the time of the organization of the corporation in 1907 there was an agreement entered into by and between the subscribers to the capital stock of the corporation, viz. the testator, Glock and Kelly, that the stock could not be sold to any other party unless the privilege of purchasing is first given to the other (180 N.Y.S.) 879 stockholders, and on the face of the certificates of stock there is this notice to the world: "This certificate is issued and held subject to an agreement between stockholders dated February 1, 1907, and is transferable only as therein provided." [3] Wills and codicils speak from the testator's death. In re Werlich's Will, 190 App. Div. 353, 179 N. Y. Supp. 692. The testator by reason of the agreement relating to the transfer of stock, understood that a valid transfer could not be had unless he was first apprised of the desire of Glock and Kelly to sell their stock. The holdings of stock continued to remain the same until the death of the testator. [4] The fifth paragraph apparently means this: He bequeaths to Glock and Kelly (copartners and business associates of the testator), each, such a number of the shares possessed by the testator, which, with their present holdings, will vest in them each the ownership of an equal half of the total stock, or, in other words, will permit each of them to hold 50 shares. I cannot conceive that it is possible to vest in them an equal number of the total stock, without adding to their own holdings enough to bring their ownership up to 50 shares each. It is the widow's contention that the words "equal number" refer simply to an equal number, meaning that Kelly should be given 2 shares, making his interest 34, which would be an equal number with Glock. But the will says "an equal number of the then total outstanding capital stock." The words "equal number" and "total" are the controlling words of the paragraph. The word "total" means "whole, not divided, entire, full, complete, the whole amount." Roget's Thesaurus of English Words and Phrases gives the word "total" as synonymous with "entirely," "the whole," "aggregate," "one and all." The word "equal" means "even," "sameness of quantity or degree," "the same." The word "number" is synonymous with "ratio," "proportion," and should be read as though it was written "equal half or part." The conjunctive word "and" between the words "Glock and Kelly," in the first line of the will, expressed the relation or connection. It conjoins the two names of the legatees. The word "each," following thereafter, negatives the use of the alternative word "or," which it is urged by the widow should be substituted for "and." The plural in the words "they may own," as used further on in the paragraph, denotes why the word "and" cannot be eliminated and "or" substituted. It is urged that, in the event of a sale of some of the shares of the stock owned by Glock or Kelly, then it would have been impossible to have them take enough shares of stock under the will to give them each an equal half of the total. Such a claim is without force. It is a mere possibility which did not materialize. We are not dealing with a mare's nest. The will speaks from the death of the testator, and the evidence shows that they had not sold any of their shares. They had lived up to their agreement, and their holdings at the period of formation of the company, at the date of the will, and at the death of the testator were the same. The testator never intended that any part of the stock of Austin & Merritt, Incorporated, should pass into the trust created by the fourth paragraph of the codicil, and eventually into the residuary estate given to charity under the tenth paragraph of the will. The operation of the will upon this object of the testator's bounty presents no latent ambiguity. The court declined to hear evidence offered as to statements made by the testator to persons before and after the making of the will looking to throw light upon what the testator intended by the paragraph in controversy. Inapt words were not used to create the gift. If a latent ambiguity had been created, I doubt if in this case extrinsic evidence would have been admissible to prove the testator's intention to add to the gift. Matter of Lummis, 101 Misc. Rep. 258, 166 N. Y. Supp. 936; Matter of Fowles, 95 Misc. Rep. 48, 158 N. Y. Supp. 456; Jones on Evidence, § 480; Kirkland v. Conway, 116 Ill. 438, 6 N. E. 59. It is my opinion that it was the intention and the true interpretation of paragraph 5 that 34 shares of the stock owned by the testator passed under the will, so that Glock and Kelly together, with their own stock, are now vested each with an equal half or part of the entire outstanding capital stock of the corporation. Decree may be entered accordingly. (110 Misc. Rep. 617) In re HITEMAN'S ESTATE. (Surrogate's Court, Herkimer County. February 16, 1920.). 1. TAXATION 876(1)-INSTITUTIONS MAY BE EXEMPT AS BENEVOLENT, EDUCATIONAL, OR RELIGIOUS INSTITUTIONS, THOUGH BENEFITS ARE NOT UNIVERSAL. It is not essential, to secure an exemption from taxation as a benevolent or charitable, educational, or religious institution, that its benefits be made universal. 2. TAXATION 876 (1)-MASONIC LODGE HELD EXEMPT FROM TRANSFER TAX AS A "CHARITABLE CORPORATION" AND A "BENEVOLENT CORPORATION." Masonic lodge, which filed certificate under Laws 1866, c. 317, reenacted into Benevolent Orders Law, § 2, in view of General Construction Law, § 95, not engaged in any business or commercial enterprise, deriving its income solely from membership dues, initiation and affiliation fees, and gifts, and distributing its funds, after payment of expenses, to the relief of its needy members and their families, and to the support of a home provided for indigent Masons, their wives, widows, and orphans, maintained by the Trustees of the Masonic Hall and Asylum Fund, incorporated by Laws 1864, c. 272, as amended by Laws 1898, c. 666, held both a "charitable" and a "benevolent" corporation, within Tax Law, § 221, making property devised or bequeathed to such corporations exempt from the transfer tax. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Benevolent Association; Charitable Corporation.] In the matter of the estate of Henry Hiteman, deceased. From an order exempting a legacy from taxation, the State Comptroller appeals. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |