Decedent died in 1895. He directed his trustee to pay the income of one-half of his residuary estate ‘to his wife during her life and the income of the other one-half to his sister during her life. He further directed that after the death of each of the life tenants the one-half of the residuary estate held in trust for her benefit should be paid to the Jennie Clarkson Baptist Orphan Home. This corporation was one of those charitable organizations which, under section 6 of chapter 319 of the Laws of 1848, as amended by Laws 1903, c. 623, could not take more than one-half of the personal property of a testator if such testator was survived by a wife, child, or parent. The transfer tax appraiser found that the value of the remainders after the life estates of decedent’s wife and sister exceeded one-half of the estate by about $40,067, and he reported that the decedent died intestate as to this amount. The order assessing a tax upon the estate of decedent did not assess a tax upon this amount, nor did the appraiser report that it was taxable. The state comptroller now applies for an order assessing a tax upon this sum as of the date of death of the life tenant.
[1] As the report of the appraiser did not contain a finding that taxation on this amount should be suspended until the death of the life tenants, and as the order entered upon the report did not suspend taxation upon it, the court will not, while the original order is still unmodified, grant an application which would in effect determine that the original order fixing tax was erroneous. Matter of Schermerhorn, 38 App. Div. 350, 57 N. Y. Supp. 26; Matter of Lowry, 89 App. Div. 226, 85 N. Y. Supp. 924.
[2] Besides, if the appraiser was correct in finding that that part of the bequest to the Jennie Clarkson Baptist Orphan Home which exceeded one-half of decedent’s estate passed by the Intestate Laws, then that sum was taxable at the date of decedent’s death, and not at the date of death of either of the life tenants. The appraiser’s failure to include it in his report, as well as its exclusion from the order assessing a tax upon decedent’s estate, constituted a determination that it was not taxable; and if that determination was erroneous, the remedy of the state comptroller was by appeal. Matter of Crerar, 56 App. Div. 479, 67 N. Y. Supp. 795; Matter of Morgan, 36 Misc. Rep. 753, 74 N. Y. Supp. 478; Matter of Von Post, 35 Misc. Rep. 367, 71 N. Y. Supp. 1039. Application denied.