Opinion
Argued October 3, 1938
Decided November 29, 1938
Appeal from the Supreme Court, Appellate Division, First Department.
Mortimer M. Kassell and Harry T. O'Brien, Jr., for appellant.
Sidney W. Davidson and McDonald E. Wrenn for respondents. Walter D. Fletcher, William M. Hobson and John M. Polk for executors of Emma R. McAlpin, deceased, amici curiae.
In Matter of Lagergren ( 276 N.Y. 184) we held that the tax imposed by section 249-p of the Tax Law (Cons. Laws, ch. 60) upon the estates of non-resident decedents was constitutionally valid. That case did not present the question whether such a tax is payable where the deductions allowed by section 249-s exceed the value of the tangible property in this State. This case presents that question of construction.
"It is true that the statute does not say that the deductions allowed by section 249-s are limited by the formula prescribed by section 249-p or that only such portion thereof shall be made as will leave a taxable net estate. The statute directs that such deductions shall be made." ( Matter of Lagergren, supra, p. 191.) It is also true, however, that section 249-s directs that the deductions shall be made from the "gross estate" which, as defined by section 249-r, includes not only a decedent's tangible real and personal property within this State, but also his intangibles. When all these provisions are taken together, it cannot be said that the statute imposes no tax where the value of the tangible property within this State is less than the deductions allowed. Rather it was plainly the purpose of the Legislature that in that case the deductions shall be prorated in the proportion that the value of the tangible property in this State bears to the value of the gross estate. We think the statute sufficiently gives effect to that purpose.
The order of the Appellate Division and the decree of the Surrogate's Court should be reversed and the matter remitted to the Surrogate's Court for further proceedings in accordance with this opinion, without costs.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Ordered accordingly.