In re the Estate of Dun

Thomas, S. The decedent was, at the time of his death, engaged in carrying on business under the name of R. G. Dun & Go., and was the sole owner of that business. The appraiser [391] designated for the purposes of the transfer tax included as an item of property assessed hy him, “ Good will of the business of R. G. Dun & Company, $2,000,000.” The value of such goodwill is conceded, and was, indeed, determined upon the consent of all the parties in interest, but the executor appeals from the order fixing the tax made on the appraiser’s report, and insists that “ good will ” is not property, within the meaning of the Tax Law, and that a transfer of good-will, under a last will of a decedent, is not subject to the transfer tax. By subdivision 4 of section 2 of chapter 908 of the Laws of 1896, known as the Tax Law, under the heading “ Definitions,” it is enacted that “ The terms ‘ personal estate ” and ‘personal property,’ as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account, contract, note, bond or mortgage; debts and obligations for the payment of money due or owing to persons residing within this state, however secured or wherever such securities shall be held; debts due by inhabitants of this state to persons not residing within the United States for the purchase of any real estate; public stocks, stocks in moneyed corporations, and such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real estate.” In People ex rel. Cornell S. Co. v. Dedrick, 161 N. Y. 195, 210, it was determintd that the good-will -of a business is not real property, upon any theory, and that it is not personal property, as defined in this section, and is consequently not included as personal property liable to taxation. The Appellate Division of the Supreme Court, in this department, has determined in Matter of Estate of Theodore Hellman, 77 App. Div. 355, that this definition”is applicable to article X of the Tax Law, being that part of the law referring to taxable transfers. In that case it was held that a seat in the Hew York Stock Exchange, of the value of $65,000, was im [392] properly included in the assessment of the property of a decedent, subject to transfer tax, because it was not covered by that definition, and that the decision to the contrary in Matter of Glendinning, 68 App. Div. 125; affd., 171 N. Y. 684, having been made as to a transfer which took effect prior to the passage of the Tax Law, and while the Transfer Tax Law of 1892 was in force, was not applicable. Upon the authority of this decision the definition of the Tax Law must control, and the good-will of the business of the decedent was improperly included in the appraisal. The order appealed from must be reversed, and the matter remitted to the appraiser. Order reversed and matter remitted to appraiser. NOTE ON TAXATION OF GOOD WILL. Where the administratrix of a deceased person continues Ms business in the decedent’s name the good will of such business is an asset in her hands and taxable as such. Matter of Keahon, 60 Misc. 508. In ascertaining the value of the good will of such business for the purpose of the law relating to taxable transfers, the proper method is to multiply the net earnings for a single year by a certain number of years, the number depending upon the nature of the business, which, in the present case, was fixed at three. Id. The interest of a deceased partner in the good will of the business is an asset of his estate, in the absence of an agreement to the contrary. Matter of Silkman, 121 App. Div. 202. It is not error to refuse to charge a jury upon that in estimating the good will by the net profits, the number of years which the average annual net profits are to be multiplied by cannot exceed five, where under the circumstances the proper number of years is a question of fact. Van Au v. Magenheimer, 126 App. Div. 257 See also, Case and Wife v. Abel. Executor 1, Paiges Chancery 393.