(183 N.Y.S.) of the nature which caused the death of claimant's testator, it was the duty of the town superintendent, not the state, to provide it. Claimant has failed to establish a valid claim against the state, and the claim must be dismissed. ACKERSON, P. J., and MORSCHAUSER, J., concur. (112 Misc. Rep. 433) In re WHITE'S WILL. (Surrogate's Court, New York County. June 29, 1920.) Wills 191-Law of testator's domicile, where he married and died, governs as to revocation of will by marriage. Where testator made a will in 1900, while unmarried and a resident of Illinois, and at the time of his marriage in 1915 and death in 1918 was a resident of New York, the New York law, under which his marriage did not revoke the will, governs; Decedent Estate Law, § 35, as amended by Laws 1919, c. 293, changing the law in this respect, and enacted subsequent to his death, not being retroactive. In the matter of Nicholas W. White, deceased. Contested proceeding to probate a paper as the last will and testament of deceased. Propounded paper admitted to probate. See, also, 106 Misc. Rep. 210, 174 N. Y. Supp. 424. The COHALAN, S. This is a contested probate proceeding. framed issues I directed the jury to answer favorably to the proponent. Another issue arose during the trial, and that was as to the revocation of the will by reason of the subsequent marriage of the decedent. Upon the question of law thus presented I directed the filing of briefs, and that is the matter for present disposition. A short résumé of the evidence will perhaps not be amiss. Nicholas W. White, while a resident of the state of Illinois, executed on September 26, 1900, a will in due and proper accordance with the requisites of law. He was at that time unmarried. The will left the entire estate to "my mother, Ellen White, and sister, Mary White, to be divided jointly." The mother predeceased the testator. The sister mentioned in the will, another sister, a brother, a nephew, and a niece. survive him, as does his widow, who is the contestant herein. In 1902 he moved to the state of New York, and continued to reside here until his death. In 1915, while a resident of the state of New York, he married the present contestant. He died in 1918, a resident of the state of New York. There is a conflict between the laws of New York and Illinois as to the effect of the subsequent marriage of a man upon a prior will executed by him, hence the issue herein. The law of Illinois, as embodied in section 10 of the Descent Act of Illinois (Hurd's Rev. St. 1911, c. 39), reads, inter alia, "A marriage shall be deemed a revoca For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 183 N.Y.S.-9 tion of a prior will," and has repeatedly been applied by the courts. of that state to the will of an unmarried man. McAnnulty v. McAnnulty, 120 Ill. 33, 11 N. E. 397, 60 Am. Rep. 552; Sloniger v. Sloniger, 161 Ill. 277, 43 N. E. 1111. The claim is made that such law governs; that the will of a resident of New York becomes revoked by his subsequent marriage, made while domiciled here, by operation of the law of Illinois, because it was executed in Illinois while he was a resident there, or, as the contestant phrases it, that "a will is construed as to revocation by marriage by the circumstances and law in force at the date of the instrument." Upon analysis the cases cited by contestant fail to sustain such a claim. For the most part they do not involve, as does this matter, any change of domicile with its consequent complications. The apparently favorable expression from the opinion in the Matter of Del Genovese, 169 App. Div. 140, 154 N. Y. Supp. 806, which contestant seizes upon, must be taken in connection with the facts in that matter, where the court had its mind directed to a consideration of whether it was dealing with a will "disposing of the whole estate of the testator." Since the decedent was domiciled in New York, both at the time of his marriage and at the time of his death, it is unnecessary to determine whether the question of revocation by marriage is governed by the law of the testator's domicile when he dies or by the law of his domicile when he marries. The New York and Illinois decisions favor the view that it is the law of his domicile at death which controls. Matter of Coburn, 9 Misc. Rep. 437, 30 N. Y. Supp. 383; Matter of Braithwaite, 19 Abb. N. C. 113; Tyler v. Tyler, 19 Ill. 151; In re Tuller, 79 Ill. 99, 22 Am. Rep. 164. As was said in the Matter of Coburn, 9 Misc. Rep. 439, 440, 30 N. Y. Supp. 383 (a case peculiarly in point on the facts, and moreover construing section 24 of the Decedent Estate Law [Consol. Laws, c. 13], which section contestant claims makes applicable to this case the law of Illinois): * * ** "The law of a decedent's domicile at the time of death governs and gives effect, or otherwise, to his will. If Mrs. Coburn had died a resident of the state of New Jersey her will would have been admitted to probate there as valid, and undoubtedly such personal property as was in this state could have been administered according to the will under ancillary letters issued in · this state. But it is not true that, having made her will in New Jersey while a resident there, her will should have the same effect now and here as it would have had if she had been a resident there at the time of her death. Case of Braithwaite, 19 Abb. N. C. 113; In re Witter, 15 N. Y. Supp. 133; Trimble v. Dzieduzyiki, 57 How. Pr. 208. The principles maintained in these cases go further than establishing the rule by which the domiciliary law governs the disposition of personalty; they also prove that this law overrides previously existing conditions by which a different result would have obtained. A will is ambulatory not only in being subject to revocation and alteration, but in being incomplete and inchoate. Before rights can be acquired under it the testator must die, and at the time of his death the will must be valid under the laws then existing. Moultrie v. Hunt, 23 N. Y. 298. And this I suppose to be true whether a change in the law has occurred by legislation or by removal to another state where different laws exist." There is one more point which the contestant stresses-that the 1919 amendment to section 35 of the Decedent Estate Law is applicable in the instant case. Prior to such date the law of this state, while (183 N. Y.S.) holding that the will of an unmarried woman is revoked by her subsequent marriage (sec. 36, Decedent Estate Law) did not apply the same rule in the case of an unmarried man. Chapter 293 of the Laws of 1919, in effect September 1, 1919, altered this situation and placed the spouses upon a parity. The contention however that the law as thus promulgated applies to the matter at bar is without merit. The decedent died prior to the enactment of such law, and there is nothing to indicate that it is intended to be retroactive. Dodin v. Dodin, 16 App. Div. 42, 44 N. Y. Supp. 800, affirmed 162 N. Y. 635, 57 N. E. 1108. I hold therefore that the law to be applied in this matter is the law of the state of New York at the time the decedent died domiciled here, and that under such law the will remains unrevoked. Having resolved the question presented in favor of the proponent, the propounded paper is admitted to probate. Tax costs and settle decree on notice. (112 Misc. Rep. 304) In re LORD'S ESTATE. (Surrogate's Court, New York County. June 18, 1920.) 1. Wills 846-Federal estate tax held chargeable to decedent's estate, and not apportionable to legacies. The federal estate tax paid by executors should be charged to decedent's estate, and none of it apportioned to any of the legacies; provision of the will, that "all inheritance, legacy, or transfer taxes on the legacies given" by certain articles of the will "shall be paid by my executors out of my residuary estate," not indicating that any of such estate tax shall be paid by any of the legacies. 2. Taxation 889—Inheritance taxes paid to foreign states held properly charged to legacies payable in those states. Inheritance taxes assessed in, and by the executors paid to, foreign states, are properly charged by the executors to the legacies assessed in those states; the will not indicating they are to be paid out of the estate. 3. Taxation 889-Succession taxes assessed in foreign states not chargeable to general legacies, but to residue; "inheritance, legacy, or transfer taxes on legacies." Taxes assessed in foreign states of the Union on the right of executors to succeed to property having its situs there, and by the executors paid, are not chargeable to general legacies, but to the residuary estate, not being "inheritance, legacy, or transfer taxes on the legacies," which under a provision of the will were to be paid by the legacies. 4. Wills ~~820 (4)—Interest on legacies, till legacies are paid, intended to be paid from income of estate. By a will charging legacies on the real estate, authorizing the executor to sell it to pay them, giving him a wide discretion as to time and terms of sale, postponing their payment till such power of sale is exercised, and declaring that during this period they shall bear interest from the time when they would, but for such provision, become payable, and empowering the executor to lease the real estate till it be sold, and apply the income to the payment of the legacies, it is intended that the interest on the legacies be paid out of such income. In the matter of the estate of Frances T. Lord, deceased. Heard on objections to executors' accounting. Sustained in part, and in part overruled. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Henry De Forest Baldwin, of New York City, for petitioners. Courtlandt Nicoll, of New York City, and Shelton Pitney, for certain respondents. Emmet, Marvin & Roosevelt, of New York City (John F. Curran, of New York City, of counsel), for New York Life Ins. & Trust Co. Cadwalader, Wickersham & Taft, of New York City (Francis Smyth and Laurence Millet, both of New York City, of counsel), for New York Ass'n for Improving Condition of Poor. Parsons, Closson & McIlvaine, of New York City (Wm. E. Carnochan, of New York City, of counsel), for Board of Home Missions of Presbyterian Church of New York City Mission Soc. William E. Stiger, of New York City, for Board of Foreign Missions of Presbyterian Church in the United States. FOLEY, S. Objections to executors' accounting. The testatrix died a resident of this county, and her will was probated here. By the twenty-third paragraph of her will testatrix directed that— "All inheritance, legacy or transfer taxes on the legacies given by the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, fourteenth and fifteenth articles hereof shall be paid by my executors out of my residuary estate." [1] The account as filed charges to and deducts from the legacies given in the paragraphs of the will, other than those mentioned in the twenty-third paragraph, a proportionate amount of the sum paid by the executors for the federal estate tax. Objection is made to these deductions. These objections are sustained. The will does not, as the executors contend, indicate any intention on the part of testatrix to apportion the federal estate tax. The federal estate tax should have been charged to the estate. Matter of Hamlin, 226 N. Y. 407, 124 N. E. 4; Matter of Wittmann's Estate, 182 N. Y. Supp. 535; N. Y. Trust Co. v. Eisner (U. S. District Court) 263 Fed. 620. [2, 3] Inheritance taxes assessed in other states were paid by the executors. In the accounts these taxes were deducted from the several legacies bequeathed by the paragraphs other than those enumerated in paragraph 23; as to the tax assessed by the states of New Jersey and Utah, proportionately, and as to the tax assessed by the states of Wisconsin, Minnesota, and Kentucky to the extent that such legacies were severally and specifically assessed in the proceedings in such states. Respecting the taxes assessed in Wisconsin, Minnesota, and Kentucky, the accounts properly deduct the tax assessed against the several legacies. Matter of Guiteras, 108 Misc. Rep. 487, 178 N. Y. Supp. 559. While this case is controlling on the last point, it does not apply to the taxes assessed in New Jersey and in Utah. In those states the legacies were not taxed. The tax assessed by the states of New Jersey and Utah was a tax upon the right of the foreign executors to succeed to the property having its situs in those states. The legacies from which the executors have deducted a proportionate amount of the tax assessed in New Jersey and Utah are general legacies. They are not payable out of the property within the states of New Jersey or Utah and taxed therein. The tax assessed in New (183 N. Y.S.) Jersey and Utah is not a legacy tax. It is a tax on the right of succession of the executors to the property having its situs in those states. These taxes were necessarily paid by the executors, and the payment by the executors merely reduced the amount of the property to be administered by them within this state. They are not "inheritance, legacy or transfer taxes on the legacies," as provided in the twenty-third paragraph of the will. These taxes are therefore chargeable, if not directly, at least ultimately, on the residuary. They are not chargeable on the legacies or the legatees, as the will does not disclose such intention. The objection raised by the New York Life Insurance & Trust Company regarding a mistake in the designation of that company in the accounts is sustained. The account should be corrected to read correctly. [4] The objection to the insufficiency of interest credited to the several trust funds set forth in Schedule L of the account is overruled. The executors were correct in deducting from the income of the estate interest paid on the pecuniary legacies. The will charges all the legacies, on the real estate owned by testatrix. The executors are authorized to sell the real property to pay legacies and are given a wide discretion as to the time and terms of the sale. The will further provides that the payment of the legacies be postponed until the power of sale in the executors is exercised, and during this period the legacies should bear interest at the rate of 5 per cent. "from the time when they become payable, but for this provision." The executors were also empowered to lease the real property until it be sold, and to apply the income "to the payment of the foregoing legacies." I think it plain that the testatrix intended the interest on the legacies to be paid out of the income, which by the express terms of the will was made applicable to the payment of the legacies themselves. Tax costs and submit decree on notice accordingly. In re HUMPHREY'S ESTATE. (Surrogate's Court, New York County. June 15, 1920.) 1. Gifts 47 (1), 49(1)—Burden on claimant to show gift by convincing proof. One who claims to own personal property as a gift from a decedent has the burden of proof, and the proof must be definite, clear, convincing, strong, and satisfactory. 2. Gifts gift. 49 (1)—Evidence of intent to make gift held insufficient to prove In an administrator's proceeding in discovery to obtain possession of certain bonds claimed by respondent as a gift, evidence consisting of a written declaration by donor that she wanted to give respondent the bonds, and requested him to call upon her for that purpose, merely expressing an intention to make a gift held insufficient to support it, in absence of proof of delivery. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |