In re the Estate of Stebbins

The executor of the estate of decedent has' appealed from the report of the transfer tax appraiser and the order fixing the tax, claiming that a deduction has not been made for trustee’s commissions in addition to those as executor, and on the *385further grounds that certain remainders over which the decedent gave powers of appointment have been reported as presently taxable, and that the aggregate of all the remainders has been found by the appraiser to be taxable in one sum.

An examination of the appraiser’s report shows that executor’s commissions have been allowed and that a deduction for trustee’s commissions has been made from each one of the four trust funds. The appeal of the executor on this ground is therefore dismissed.

The decedent left him surviving five children. By his will he directed that his residuary estate be divided into five parts, one of which he gave to his son, James H. Stebbins, Jr., absolutely. The income from another one-fifth share was to be paid to a daughter, Frances C. Bucher, for life, the remainder to her issue; if no issue, then to increase the shares of the other children of the testator. A like disposition was made of the one-fifth set apart for Cora D. Dickinson, daughter of decedent.

The testator directed that the income of one-fifth of the residuary estate should be paid to his son, Walter A. Stebbins, for life, with power of appointment over the remainder among the family of the son or his brothers and sisters. A substantially similar provision was made in the case of the one-fifth' set apart for Blanche P. S. Vallois, daughter of decedent, the only difference being that her family were not included among those for whose benefit the power could be exercised.

In Matter of Howe, 86 App. Div. 286; afifd., 176 N. Y. 570, it was held that where a power of appointment is conferred by will upon the life beneficiary of a trust the remainder is not taxable until it vests by the exercise or non-exercise of the power.

*386By the provisions of the will of the testator in Matter of Burgess, 204 N. Y. 265, powers of appointment over certain remainder interests were given to the daughters of the decedent, who were not, however, the life beneficiaries. The powers would not become vested in the daughters under the will unless they survived their mother, the widow of decedent, who was the life tenant. The court held that as the vesting of the powers of appointment was contingent, the remainders might not pass by the exercise or non-exercise of the power, and should be taxed on the assumption that the powers would not vest; otherwise, as it was explained in the opinion, the remainders might escape taxation altogether.

In the present case the powers of appointment vest absolutely in the respective life tenants by the will of decedent, and although the beneficiaries are limited to a class, the remainders are certain of taxation, for they will pass by the death of the donees of the powers whether such powers are exercised or not.

The appraiser erred in reporting the remainders after the life estates of Walter H. Stebbins and Blanche P. S. Vallois as presently taxable, and taxation thereon should have been suspended.

The remainders after the life estates of Frances C. Rucker and Cora D. Dicldnson should be taxed collectively against the trustee for the benefit of a person of the one per cent class.

The report is remitted to the transfer tax appraiser for correction as indicated herein.

Decreed accordingly.