dollars or forty-four per share in July, 1913, and forty dollars to forty-one dollars per share in January, 1913, and a few dollars more in January, 1914.

The sale of the shares now in question was conducted by the public administrator and took place fifteen months after the date of the death of the decedent. He advertised in four newspapers, two of which are published and circulate in the county of Bronx, the third was the New York Law Journal and the other a paper devoted to and being the organ of the milk and creamery business, read by those in that line of business who would be most familiar with stock of this character and presumably interested in its purchase. In addition to this, the public administrator caused to be mailed a notice of the sale to each of the stockholders of the corporation and upon the record it has been stipulated that the notice thus given on April 15, 1915, was due and timely.

In my opinion the public administrator used diligence and good judgment in advertising the sale and in giving notice to people who would in the ordinary course of affairs be most familiar with the value of the stock and hence be most likely to be interested in its purchase. The results showed this for it appears that there were in attendance at the time of the sale between twenty-five and thirty-five persons.

The sale was conducted at public auction and, before the stock was sold, the report of an expert accountant who had examined the books of the company at the instance of the appraiser was read to the assembled prospective bidders. The shares were sold in blocks of ten with the exception of the last block offered which consisted of twelve shares. The bids upon the first lot offered began at twenty-five dollars per share and went up gradually to thirty-seven dollars per share. Thereafter, thir

teen more blocks were sold at that figure. Then eight blocks were sold at thirty-six dollars per share each, the bids having begun at twenty-five dollars for each share and advancing to

that figure, and the final block of twelve shares was also sold at thirty-six dollars per share. The testimony is that there were seven or eight or possibly ten bids. Eight people bought stock. There is no evidence of any understanding or agreement among the bidders to limit the amounts of their bids, and no contention that there was such an agreement. I believe that the sale was properly conducted. I am satisfied that if, in the opinion of the stockholders present at this auction sale, the shares were worth more than they brought at that time, and it seems to me that the stockholders of all others should have known what they were really worth, the probabilities are very strong that they would not have stood by and seen them sold at a sacrifice.

If, therefore, the amount realized at a public auction after due and proper advertising and conducted in a proper and legal way is any criterion of market value, and in my opinion it is, then the prices which were realized at the time of the sale in question represented the value of the shares of stock at the time of the sale, and I so conclude. The value at the time of sale is not that upon which the tax is fixed, however. The transfer which is taxed is that which takes place at the time of death and it is the fair market value at that time which forms the basis of the tax. (Laws of 1909, chap. 61 [Consol. Laws, chap. 60], § 230.) See Matter of Penfold (216 N. Y. 171), recently decided by the Court of Appeals, in which may cases to that effect are cited.

Under my direction the appraiser received testimony as to the public sale, but he frankly states that he gave it no weight because it was so long after the death of the testatrix. From the uncontradicted testimony of the treasurer it appears that the condition of the company at the time of sale was better than it was at the time of the death of the decedent, and he intimates that the stock was worth more in his opinion at the time of the public sale than at the time of the death of the testatrix.

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, I do not believe that they go so far as to hold that where the shares under consideration were sold in a manner and under conditions which fix the market value thereof fifteen months after the date of death, and which may throw light upon their value at the time of death, the appraiser must close his eyes entirely to them in appraising property whose market value must of necessity be at best only an approximation. (See Marvin v. Medberry, 13 Wkly. Dig. 544; Matter of Roos, 90 Misc. Rep. 521.)

Under those conditions I believe that the sale mentioned. should have been considered by him 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. (Matter of Smith, 71 App. Div. 602.)

It is urged that when the shares were sold the European war was in progress and that this had some effect. The stock is not listed and not dealt in on any exchange, and the business was one which I do not believe was directly affected by the war. It may be, however, that the latter exercised a depressing effect on the value of these shares of stock and the appraiser, of course, had a right to consider this possibility.

Apparently the other sales made during the life of the corporation were not considered by the appraiser, nor was the testimony of the officer of the company, which in my opinion was entitled to some weight, because unimpeached and uncontradicted, and given by one who it appears from his testimony was fully conversant with the affairs of the corporation. (Cabble v. Cabble, 111 App. Div. 426.) The appraiser limited himself entirely to a calculation of the assets and an estimate of the good-will in fixing the value of the various shares. In this, I think, he erred; he should, in my opinion, have also considered the prices brought at the other sales, and the testimony of the

treasurer referred to. The fact that the returns to the shareholders from the profits of the corporation during its twenty months of existence would be large, of itself does not give the appraiser the authority to ignore actual sales of the stock. (Matter of Smith, supra.) The method of fixing value by ascertaining the value of assets and good-will should only be resorted to when there are no sales from which it can be ascertained.

Considering all of the sales and the testimony of the treasurer as to the value and allowing for a possible depression between the date of death and of the public sale on account of the existence of the European war, I am of the opinion that a fair value of said shares for purposes of taxation on the date of decedent's death was forty-four dollars.

If the appraiser was right in giving no weight to the sales public and private, nor to the opinion of the treasurer of the company, then we come to a consideration of the method adopted. by him in ascertaining the value of the good-will.

During the twenty months of the corporation's existence, the profits were large, and the appraiser has estimated the value of its good-will by taking a six years' purchase on the average net annual profit over an allowance of six per cent. on capital invested.

The general method followed by him for ascertaining the value of good-will, namely, taking a number of years' purchase and multiplying the average annual profits thereby, has received the sanction of courts of original and appellate jurisdiction. (Matter of Silkman, 121 App. Div. 202; Von Au v. Magenheimer, 115 id. 84; 126 id. 257; affd., 196 N. Y. 510.)

Hence it only remains to consider whether the number of years' purchase which the appraiser took, was, under the circumstances, warranted. He justifies his taking a six years" purchase, although the corporation was only in existence for one year and eight months, by the contention that it was carrying on

the business of the Mutual Milk and Cream Company. The latter corporation was organized in 1899 or 1900, and upon the organization of the Central Dairy Company as stated in May, 1912, the stockholders of the Mutual Milk and Cream Company were given the privilege to subscribe for stock in the new Central Dairy Company. The Mutual Milk and Cream Company then transferred to the Central Dairy Company certain personal property, fixtures and the good-will of the wholesale business of the Mutual Milk and Cream Company in the boroughs of Manhattan and The Bronx and of all wholesale routes of said company, excepting certain contracts with some seventy firms named. The said agreement, however, contained a provision that nothing therein contained should be held or construed as limiting or restraining the right of the parties to compete in the wholesale milk business after a date about three months thereafter. It appears that in consideration of the Mutual Milk and Cream Company agreeing not to compete with the Central Dairy Company in the wholesale routes for three months the Central Dairy Company paid the sum of $62,500.

The new company, therefore, was not doing business under the name of the old company, and after the expiration of three months might be forced to compete with the old company. Under such circumstances, I do not see force in the contention that it was practically the old corporation and enjoyed its good-will.

In the case of Commissioners of Inland Revenue v. Muller & Co.'s Margarine, Ltd. (L. R., App. Cas. 1901, p. 217, at 223), Lord MACNAGHTEN defined good-will as follows: "It is the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start." And in People ex rel. A. J. Johnson Co. v. Roberts (159 N. Y. 70) the Court of Appeals cites and quotes from a number of English cases and