In re the Estate of Speigelberg

O’Brien, S. Cross-appeals have been taken by the State Tax Commission and the executor from the pro forma order fixing tax entered on the report of the appraiser. The appeal of the Tax Commission is based on the ground that a contingent remainder has been taxed against trustees for the one per cent class instead of for the five per cent class. The “ Ninth ” paragraph of decedent’s will duly admitted to probate in this court reads as follows: “Ninth. * * * and in the event that neither of my said daughters nor any of their issue shall be then living at the time of the death of my wife, then and in that case I direct that the principal of the trust fund heretofore created or so much thereof as shall remain undisposed of as herein provided, shall be divided amongst such persons of my blood as would have been entitled to receive the same under the laws of the State of New York if I had died at that time intestate.” It is apparent that should the daughters predecease the wife without issue the principal of the trust fund is to be divided among the heirs at law and next of kin as though the testator died intestate at the date of death of his wife. The heirs at law and next of kin may be persons in the five per cent class and the order should contingently assess the tax accordingly. This disposes of the point raised by the appeal of the executor as the full undiminished remainder is being taxed against a different class from the daughters who are being taxed on their life estates. (Matter of Hecht, 127 Misc. 211; affd., 219 App. Div. 656; 246 N. Y. 602.) Submit order on notice in accordance with this decision.