courts that as title to the property passed on the death of the decedent, a subsequent renunciation cannot affect the liability of the beneficiary to taxation.3

1 In re Wolfe, 179 N. Y. 599, 72 N. E. 1152, affirming 89 N. Y. App. Div. 349. The court affirms and distinguishes In re Wolfe, 89 N. Y. App. Div. 349, 179 N. Y. 599, as there there was no transfer by will to the executors, and therefore no transfer tax could be imposed as the executors renounced the gift. In re Cook, 187 N. Y. 253, 79 N. E. 991, reversing 114 N. Y. App. Div. 718, 99 N. Y. Suppl. 1049.

2 In re Ullman, 137 N. Y. 403, 33 N. E. 480.

3

3 In re Frank, 9 Pa. Co. Ct. 662. In re Small, 11 Pa. Co. Ct. 1.

The surrogate has authority under the New York statute of 1892 to appoint an appraiser to appraise property adjudged to be subject to the will of a deceased person in an action between the heirs, although the executor had claimed that it was not a part of the estate, as it had been given to a certain heir during the life of the decedent.

In re Lansing, 31 Misc. Rep. 148, 64 N. Y. Suppl. 1125.

Sec. 155. Executor Paying Legacy with his own Money. Where the executor contributes the legacy out of his own funds, no tax is payable. Where one of the executors previous to the death of the testator had so invested the testator's property that it was worthless, and then on his death destroyed his will, one of the legatees by threats of criminal prosecution obtained payment of her legacy from the executor, at the same time assigning the legacy and all her interest in the same to the executor. The legacy was paid with the individual property of the executor. The legacy was two thousand dollars, and the total assets of the estate of the testator amounted to less than eight hundred dollars. The court holds that no transfer tax can be levied on this legacy, as the legatee never received any property from the estate and has in fact assigned all her rights against the estate.

In re Weed, 10 Misc. Rep. 628, 32 N. Y. Suppl. 777.

In some states the parties may avoid the tax by having property set aside as homestead under local statutes. We have considered this topic under s. 110.

Sec. 157. Insurance or Beneficial Societies.

Investors are commonly safe in investing their money in life insurance or beneficiary policies of various kinds, as we have endeavored to show under section 107.

The effect of making deposits in the joint names of two or more persons is considered elsewhere at section 105.

Some trust companies will not transfer stock held jointly on the signature of the surviving owner.

The Indiana statute prohibiting a safe deposit company from delivering the contents of a box leased by deceased jointly on death of a lessee except on ten days' notice to state officials, is valid.1

Where the testator and his brother had been doing business under an agreement dated 1877, reciting that the parties are "jointly" interested in firm property, on the death of the intestate the court on the evidence finds that the whole estate of the intestate is subject to the inheritance tax.2

1 National Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N. E. 973.

2 In re Wormser, 28 Misc. 608, 59 N. Y. Suppl. 1088.

Sec. 159. Marshaling Local Assets and Debts.

The executors of estates with property in more than one state should use great care in choosing the property they will use for paying legacies and debts, for a proper marshaling of assets may well make large differences in the taxes payable. We have treated this subject fully under sections 204, 354.

Sec. 160.

Various Gifts to Same Person.

Where in separate items of a will two or more legacies or devises are given to the same person, it matters not whether the property pass under one or more items of the will or whether the property passing under more than one item be real or personal, the tax is collectible on the aggregate of such property above the exemption. In re Inheritance Tax, 7 Ohio N. P. 547, 5 Low. Dec. 555.

Sec. 161. Quick Transfer of Stock in Foreign Corporation.

In states which impose no penalty on foreign executors or administrators for failure to pay the tax, and prescribe no lien, there is grave doubt as to the ability of the state to collect the tax from a

non-resident executor or administrator, provided he can get the stock transferred before the state takes any action. As a practical matter the state authorities are not likely to know of the death of a non-resident stockholder, and it would seem easy in these states to have the stock quietly transferred. The authors see no reason, however, why even after the stock has been transferred the state officials could not sue in the state of the domicile and recover the tax in an ordinary action. The chances of their being advised of the death of a non-resident decedent in time to take such action would seem to be slight. For example, in Michigan, stock in Calumet & Hecla and Osceola Mining Company can be transferred without any reference to the state authorities.

[See further, post, s. 203.]

Sec. 162. Premature Distribution after Taking Assets out of Jurisdiction.

A proceeding to fix the transfer tax under the statute of 1892 is not lost, as to personal property in New York belonging to a foreign testator, by the fact that his property is all distributed and the accounts of the executors closed under the laws of the domicile. Having done that, and having taken out of New York all the property of the decedent and distributed it, they cannot now urge lack of jurisdiction to fix a tax in New York.

In re Hubbard, 21 Misc. Rep. 566, 48 N. Y. S. 869.

Sec. 163. Before Possession Taken of Certificates of Stock, A gift in contemplation of death was made by a father to a daughter, and she died within a few days of his death before the certificates of stock had been actually transferred to her, and before she had received any dividends. The stock passed under her will as her property, and so passing is a transfer under the transfer tax law of the state which must suffer a tax.

In re Borup, 28 Misc. Rep. 474, 59 N. Y. Suppl. 1097.

Sec. 164. Deeds Signed and not Delivered.

Where a testator signed certain deeds and other papers and placed them in envelopes described as property of persons by whom they were endorsed, and placed the envelopes in a box in a bank, this property was still his for the purposes of the tax where he received the income from it and treated it as his own during his life.

In re Sharer, 36 Misc. Rep. 502, 73 N. Y. Suppl. 1057.

See further, post, ss. 127, 128.

Sec. 165. Property Already Bought by Legatee.

Property nominally included in the will which had been already bought and paid for by the legatees is not subject to tax. It seemed that the provisions in the will were due to the anxiety of the testator that his sisters should not be disturbed in the occupancy of the home he granted to them.

In re Morris (Orph. Ct.), 1 Pa. Dist. R. 818.

Sec. 166. Property Standing in Name of Another.

Where a large part of the estate in another state is invested in the name of a nephew of the testator, this money is taxable under the law of Pennsylvania.1

The state must show not only that the persons against whom it claims are not of the exempted class, but that the estate out of which the tax is alleged to be payable passed to those persons from one who died seized or possessed of the same. Under the Pennsylvania act actual seisin and actual possession is necessary, and a person cannot be seised of an estate which is limited to take effect only after his death. So the exercise of a power by a cestui is not

taxable under such a statute.3

1 In re Miller, 182 Pa. St. 157, 162, 37 A. 1000, citing In re Williamson, 153 Pa. St. 508, 26 A. 246, 32 Wkly. Notes Cas. 93.

Stock standing in name of stockbroker, see ante, s. 148; in joint names, see ante, s. 158.

2 In re Swann, 12 Pa. Co. Ct. 135.

3 Gallard v. Winans, 111 Md. 434, 472, 74 A. 626.