In the Matter of the Transfer Tax upon the Estate of Otto Lind, Deceased; The Comptroller of the State of New York, Appellant. William M. Hoes, Public Administrator, Respondent

In the Matter of the Transfer Tax upon the Estate of Otto Lind, Deceased. The Comptroller of the State of New York, Appellant. William M. Hoes, Public Administrator, Respondent. First Department, May 21, 1909. Tax — assessment of transfer tax on estate held by public administrator — presumption as to next of kin—rate of taxation— Tax Law, section 230, not applicable. Where, on the death of an intestate, no widow or next of kin can be discovered and letters of administration are issued to the public administrator, there is 'a presumption that the decedent left next of kin, but no presumption that he left a widow-or descendants Hence, where it does not appear that the property is exempt, under section 221 of the Tax Law, it is chargeable with a transfer tax of five1 per cent under section 220, and the taxation should not be suspended until such time as next of kin are discovered. There is no transfer “dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged ” so as to bring the case within section 230 of the Tax Law allowing a tax upon the transfer at the highest rate possible where such contingencies exist. Appeal by the Comptroller of the State of Mew York from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 4th day of August, 1908, affirming an order suspending taxation upon the interests of the persons entitled to a share of the decedent’s estate until such time as such persons are discovered and ascertained. Millard H. Ellison, for the appellant. Frank W. Arnold, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The deceased died in the city of Mew York, leaving a small amount of money in a savings bank, and, so far as appears, no widow or next ’ of kin in this State. It appeared that he was a native of Sweden, but inquiry has failed to disclose any knowledge of him, his family or next of kin. Letters of administration were issued to the public administrator, whereupon the; Comptroller of the State of New York applied tothe surrogate to have ah appraisal of the property subject to a transfer tax. The surrogate, after reciting that the property was in the hands of the administrator and that the next of kin of the decedent were unknown, and the amount"of the taxes unknown, ordered that taxation upon the shares of the persons entitled to a share of the decedent’s estate is and the same hereby is suspended until such time as the persons entitled thereto are discovered and ascertained. From-that order the Comptroller appeals. The Comptroller claims that this property can be collected under the Tax Law. (Laws of 1896, chap. 908, § 230, as amd. by Laws of 1897, chap. 284, and Laws of 1899, chap. 76). I do not think that this section applies. Upon the' death of the decedent' his personal property vested in the administrator, and his next of kin were entitled to the property upon proving their relationship to the déceased. No such person has appeared and no such person has been found to be in existence. There, has been no transfer “ dependent, upon contingencies, or conditions whereby they may be wholly or in part created,, defeated, extended or abridged.” Matter of Vanderbilt (172 N. Y. 69) had relation to a trust estate in which the ultimate beneficiaries were' uncertain, and what is said in that casé relates - to such 'ah estate. The only uncertainty as to the ownership of this property depends úpon the fact as to whether the deceased left next of kin. The presumption is that tile deceased left next of kin, but there is no" presumption that he left a widow or descendants. It is presumed, therefore, that the property vested, in the npxt of kin of the deceased, and is, therefore, taxable under section .220 of the Tax Law (as amd. by Laws of 1897, chap, 284), and as- it does not appear . that it is exempt under section 221 of the Tax Law (as amd. by Laws of 1903, chap. 41), the tax imposed by subdivision 6 of section 220 (as amd. supra) ¡applies and it is taxable at. the rate of five per centum. The.order.appealed from should be reversed and the property of the decedent taxed at the rate of five per centum, with ten dollars costs and disbursements of this appeal to be paid out of the estate. McLaughlin, Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements to be paid out of the estate, and proceeding remitted as directed in opinion. When decedent died on November 17, 1904, this section had also beemamended by Laws of 1904, chap, 758. See, also, Laws of 1905, chap. 368.— [Rep.