to increase the interest of the buyers in the success of the corporation, and he gave as his opinion that a fair and reasonable valuation of the said stock at the date of the death of the decedent was $250. As against this affidavit nothing appears to have been before the appraiser, except a report not under oath, which did not deny any of the facts stated in the affidavit submitted on behalf of the executors and which should not have been received. (Matter of Chambers, N. Y. L. J., January 31, 1912.) This report was made by "The Investors' Agency," and among other things set forth that certain quotations therein more specifically set forth had been reported in a financial publication at Chicago. Nothing was before the appraiser to show what weight should be given to the reports in the publication mentioned. There was also a statement in this report that certain offers were made by "various brokers of New York, Chicago, etc.," offering shares of stock in lots varying from five to fifty shares at prices therein set forth and which varied from 270 to 318 between April 29, 1914, and January 13, 1915, and the writer of the report states that in his opinion the shares can be fairly appraised as of May 5, 1914, at $300 per share. There is no actual sale set forth in the said report. Upon these documents the appraiser found that the value of the shares was $300 per share. In my opinion, this finding upon the papers before him was not justified. I do not consider the unverified report of any weight as against the affidavit submitted on behalf of the executors. But, even if the report had been verified, I would still hesitate under the authorities to place a valuation of $300 upon the stock of this corporation with the facts set forth in the affidavits of its manager before me and undisputed. That the transfer of these shares of stock is taxable as of the date of death is not open to discussion. The sales referred to in the affidavits of the executors were made some time after the death of the decedent, and it is urged that the value of the shares of stock at the time of death was less than the sale price. No reason is stated in the affidavit, however, why they were of less value at the time of the death of the decedent than they were at the time of the sale, except that the book value was less. Upon the evidence before the appraiser, I am of the opinion that the value of the said shares of stock at the date of the death of the testator was the same as when the sales referred to in the affidavits were made. It follows that the shares of stock should have been assessed at $275 each. The order will therefore be reversed and the appraiser's report remitted to him for correction, as indicated. Order reversed and appraiser's report remitted for correction. Matter of the Transfer Tax Upon the Estate of MARIA A. VALENTINE, Deceased. (Surrogate's Court, Bronx County, June, 1915.) TRUSTS-TRANSFER TO TRUSTEES OF ALL REAL AND PERSONAL PROPERTYPROVISIONS-WILLS-FIXING TAX UNDER LAW AS IT EXISTED AT DEATH OF SETTLOR. A decedent by instruments executed and delivered before her death conveyed and transferred to trustees all her real and personal property, upon a trust to apply the income to the use of the grantor or settlor during her life, and, if necessary in the opinion of the trustees, to similarly apply the principal of the personalty or the proceeds of the sale of real estate, and upon the death of the settlor to sell the remaining real estate and convert it into cash, to be deemed pensonalty, and to pay the same together with the cash resulting from the sale of the remaining personal property to such persons and in such proportions as might be provided by the settlor in her last will and testament or else as provided by the laws of the State of New York in force at the time of the settlor's death for the distribution of estates in case of intestacy. The trust further provided that if, upon the death intestate of the settlor, it appeared to the satisfaction of the trustees that the share of any legatee or next of kin was subject to seizure or interference by judgment, claim or execution against such next of kin, such share should be held in trust by the trustees and the income, and such part of the principal as the trustees might deem necessary be applied to the support of said next of kin until the exhaustion of the fund or the disappearance of the danger of seizure, in which latter event the balance of such share was to be paid to the next of kin or, if he had in the meantime died, to his issue per stirpes and not per capita. The settlor having died intestate, Held, that, as to those of the next of kin whose shares were not subject to seizure, the tax must be fixed under the law as it existed at the time of the death of the settlor, they taking under the statute and not under the trust instrument, and that as to those of the next of kin whose shares were subject to seizure the tax should be fixed under the law as it existed on the date when the trust instruments were executed. APPEAL from order fixing transfer tax. Abel Crook, for trustees, appellants. Salter & Steinkamp, for G. A. Briggs, appellant. Tulin, Dunham & Sisson, for Mabel W. Cable et al., appellants. John Boyle, Jr., for comptroller, respondent. SCHULZ, S.- Maria A. Valentine died April 2, 1913. On the 7th day of January, 1909, she executed and delivered an instrument granting, conveying, assigning, releasing, transferring and setting over unto two persons therein named all of her property, real and personal, and on the same day she executed a deed of all her real property to the same persons; both. instruments being upon the trusts hereinafter stated. The transfer tax appraiser, in appraising her property, did so under the law relating to taxable transfers of property as it existed on the 7th day of January, 1909, the date of the documents above referred to. The trustees have appealed from the appraisal and from the order which was entered thereon assessing the tax. The appellants claim that the appraiser erred in fixing the value of certain property owned by the decedent, consisting of a parcel of real estate in the county of Bronx, city of New York, and in assessing the tax under the law as it existed at the time of the execution and delivery of the instrument aforesaid; their claim being that the said tax should have been assessed under the laws in force on the date of the decedent's death. The appraiser heard testimony submitted on behalf of the State Comptroller and on behalf of the appellants as to the value of the parcel of real estate above mentioned. The assessed valuation of this property for purposes of taxation was $58,000. The testimony on behalf of the appellants was that it was worth $61,000, and that on behalf of the Comptroller was that its value was $70,600. The appraiser found it to be worth $68,000. I do not feel that I would be justified upon the testimony in this proceeding in concluding that his appraisal was not fair, and I accordingly sustain his valuation of the said real property. (Matter of Valentine, 163 App. Div. 843.) In considering the second question raised on the appeal, it becomes necessary to examine the trust instruments executed by the decedent on the 7th day of January, 1909. As the deed heretofore referred to embraces only real property and contains provisions substantially the same as the other trust instrument, and as the latter refers to all of the property, both real and personal, unnecessary duplication will be avoided by considering only the trust instrument last mentioned. That part of the document in question which contains the trust provision, so far as material, is as follows: "To have and to hold the above granted premises *. In trust nevertheless to collect * * the income from such real and personal property * * and to apply the net income derived therefrom to the use of the party of the first part (the settlor) during the term of her life, and if in the opinion of the parties of the second part (the trustees), their survivor, successor or successors, such income shall be insufficient for the proper maintenance of the party of the first part, then the parties of the second part, their survivor * * shall be at liberty to apply any portion of the principal of the personalty or the proceeds of any sale of the real estate to such purpose without liability * * * As to the disposition which shall be made after the death of the decedent, the document provides that "upon the death of the party of the first part, the parties of the second part, * shall sell * my said real estate or so much * * * * thereof as shall not have been theretofore sold and convert the same into cash, to be deemed personalty and pay over the same to such persons and in such proportions as shall be provided in my last will and testament or otherwise as shall be provided by the laws of the State of New York in force at the time of my death for the distribution of estates in case of intestacy. And shall also sell * * * all my personal property and add the net proceeds arising from said sales to the balance of the moneys in bank to be distributed as above provided relative to the proceeds of real estate. If upon the death intestate of * * * the party of the first part it shall appear to the satisfaction of the parties of the second part, their survivor * * that the share then to be set apart and which would be distributable to any of my legatees or next of kin shall be in danger of being levied upon, seized or otherwise interfered with * * * under any judgment, claim, execution * * * then such * shares shall be held by the parties of the second part * * in trust and deposited or invested at interest in such banks as to the parties of the second part * * * * * * may seem best and the income arising therefrom, together with such portion of the principal maintenance and support of said beneficiary shall be applied to |