tion of his estate should be expended thereunder. In Emans v. Bickman (12 Hun, 425) the testator left his entire estate to his executors for his funeral expenses and the erection of a monument. The estate amounted to $1,200, and the court held that it was the intention of the deceased to devote an amount which was reasonable in view of his position in life and the extent of his property, and affirmed the decree fixing the sum of $150 as the limit to be expended for the monument.

In

No arbitrary rule can be laid down establishing what is a reasonable expenditure for a monument. Each case depends for its determination upon its own peculiar conditions. (Matter of Erlacher, 3 Redf. 8; Matter of Howard, 3 Misc. Rep. 170.) A few of the large number of cases on this subject showing the attitude of the courts may be referred to with profit. Matter of Mount (3 Redf. 9, note) the amount of the estate was $983.30, and a charge of $78 for a gravestone was cut down to $50. In Miller v. Morton (89 Hun, 574) it was held that $1,400 for a monument was too expensive for an estate of $3,540. In Matter of Beach (1 Misc. Rep. 27) the court said that an estate of $8,000 justified an expenditure of $400 for a monument. In Matter of Mount (3 Redf. 9, note) it was held that a charge of $700 for a burial lot and monument is excessive where the estate amounted to less than $2,800. In Owens v. Bloomer (14 Hun, 296) the court considered an expenditure of $500 for a monument extravagant, the estate not exceeding $8,000. In Burnett v. Noble (5 Redf. 69) the personal estate. being less than $2,000 an allowance of $700 was refused and reduced to $250.

The provision now under consideration does not, in my opinion, in terms require that all of the balance shall be expended for funeral expenses and the erection of a monument, and I believe that the intent of the testatrix was that so much of the balance as would be reasonable, having in mind her

station in life and the amount of her estate, should be used to defray the funeral expenses and to pay for a monument.

The executor states that he knew the decedent for a number of years before her death, being related to her husband; that she lived with one of her daughters in a very frugal way and that her habits of life were modest and simple. These are facts which he should take into consideration in deciding how much to spend for a monument. As a guide to him I will say that a monument such as she purchased for her deceased husband would not be unreasonable in my opinion. I do not think that it is necessary for me to fix the cost of such monument arbitrarily, particularly when the executor himself has an intimate knowledge of the circumstances of the decedent.

I therefore find that the intent of the testatrix was as above stated and that as to any balance remaining in the hands of the executor after the payment of debts, legacies, expenses of administration and funeral expenses and after paying for a monument, the decedent died intestate, and such balance is distributable in accordance with the statute governing distribution of personal property.

Decreed accordingly.

Matter of the Transfer Tax Upon the Estate of MARY
MCMULLEN, Deceased.

(Surrogate's Court, Bronx County, December, 1915.)

APPEAL FROM ORDER OF TRANSFER TAX APPRAISER-EVIDENCE-TRANSFER TAX-CORPORATIONS.

On an appeal by decedent's next of kin from an order entered upon the report of the transfer tax appraiser it appeared that the decedent was the owner of 232 shares of capital stock in a corporation, the par value of which was fifty dollars per share. He died on January 18, 1914, and on April 20, 1915, the public administrator as administrator

sold at public auction 140 of said shares at thirty-seven dollars per share and 92 shares at thirty-six dollars per share. The appraiser fixed the value of these shares at seventy-eight dollars each, based upon a valuation of the physical assets and an estimate of the good-will of the corporation. He took a six years' purchase on the annual net profits, although the corporation had been in existence for only twenty months and justified this by the contention that it was continuing the business of another corporation. From the date of its incorporation in May, 1912, to February, 1915, there had been twenty-eight transfers of the stock of the corporation; fifty-three shares were sold in July, 1913, at twenty-five dollars, and eighty-four shares sold in December, 1913, at thirty dollars per share. The uncontradicted testimony of the treasurer of the corporation was that the shares were at that time worth fortythree or forty-four dollars per share and forty to forty-one dollars in January, 1913, and a few dollars more in January, 1914. The sale of the said 232 shares took place fifteen months after decedent's death. All the stockholders were notified of the sale.

The returns to shareholders from the profits of the corporation during its existence of about twenty months would be large. The appraiser did not give any weight to the evidence of the actual sales prices of the shares under consideration, nor to other sales of the same stock in arriving at a valuation of shares of the stock in question.

The appellant contended that the appraiser's valuation was unjustified and the questions presented were whether the appraiser was warranted in giving no weight at all to the evidence of actual sales prices of the shares under consideration, and, if so, whether he erred in his method of arriving at the valuation of good-will. Upon the facts

Held, (1) that the transfer which is taxed is that which takes place at the date of death and it is the fair market value of the property transferred at that time which forms the basis of the tax;

(2) That the amount realized by the sale at public auction after due and proper advertising and conducted in a proper and legal way represented the value of the shares of stock at the time;

(3) That the sale mentioned should have been considered by the appraiser, not as necessarily conclusive, but as one of the sales which together with the others made during the life of the corporation might have aided him in fixing the market value which is the subject of the tax; (4) That other sales of stock and the uncontradicted testimony of one of its officers should have been considered in arriving at the valuation of the said 232 shares;

(5) That while the taking of a number of years purchase on annual net profits has received the sanction of courts, and while there are decisions to the effect that remote sales are not binding on the appraiser as to the value of the security at the date of death, such decisions do

not go so far as to hold that the appraiser, where the shares under consideration were sold in the manner and under conditions which fix the market value fifteen months after decedent's death and which may throw light on their value at the time of such death, must disregard them entirely in appraising property whose market value must of necessity be at best only an approximation;

(6) That the fact that the returns to shareholders from profits would be large does not of itself give the appraiser the authority to ignore actual sales of stock;

(7) That the method of fixing the value of the stock adopted by the appraiser should be resorted to only when there are no sales from which such valuation can be ascertained;

(8) That the corporation in question was not doing business under the name of a former corporation, and that there was no force in the contention that it was practically the former corporation and enjoyed its good-will should be based upon a calculation of profits before decedent's death, and the life of the corporation should be one of the elements considered;

(9) That the taking of a six years' purchase was not proper and that, under all the circumstances, a more just result would be obtained by taking the actual net profits made during the life of the corporation, about twenty months, as being the value of the good-will instead of a six years' purchase on the average annual profits.

(10) Accordingly held that the said shares should have been appraised at forty-four dollars per share.

APPEAL from an order assessing a transfer tax.

Gordon & Rogers, for appellants.

John Boyle, Jr., for respondent.

Ernest E. L. Hammer, public administrator in person.

SCHULZ, S.- The next of kin of the decedent appeal from an order entered upon the report of the transfer tax appraiser. The decedent at the time of her death was the owner of two hundred and thirty-two shares of the capital stock of the Central Dairy Company, a corporation engaged in dealing in milk and dairy products. She died on January 18, 1914.

Letters of

administration were issued to the public administrator on September 8, 1914, and the shares of stock were sold on April 20, 1915. The par value of the stock was fifty dollars per share, and at the sale one hundred and forty shares were sold at thirtyseven dollars per share and ninety-two shares were sold at thirtysix dollars per share.

The appraiser valued the shares of stock at the sum of seventyeight dollars per share. He arrived at the said amount by giving each of the shares a value of thirty-six dollars and ninetytwo cents, based upon the physical assets of the company. Το this he added the sum of forty-nine dollars and seventy-six cents per share for good-will, thus fixing the gross value of each share at eighty-six dollars and sixty-eight cents. From this amount he allowed ten per cent. deduction for depreciation.

The appellant contends that this valuation is unjustified and, as there is no dispute about the value of the physical assets, the questions which remain are whether the appraiser was warranted in giving no weight at all to the testimony offered to show the value at the time of the transfer, and to the evidence of the actual sales' prices of the shares under consideration, and others sold during the life of the corporation, and, if so, whether he erred in his method of arriving at his valuation of good-will.

The corporation in question was organized in May, 1912, with a capital stock of $600,000. The outstanding capital stock amounted to $533,450, evidenced by 10,669 shares. From the date of its incorporation to February, 1915, there were some twenty-eight transfers of stock. The sales made nearest to the date of the death of the decedent were one of fifty-three shares purchased by the son and daughter of the treasurer in July, 1913, at twenty-five dollars, and one of eighty-four shares which were sold at thirty dollars per share in December, 1913. The treasurer of the company testifies that the shares of stock bought by his son and daughter were a bargain and below the market. price and that in his opinion the same were worth forty-three