In re Simpson's Estate

FOWLER, S. The decedent, who was a resident of New York county, died intestate on the 30th of March, 1912. An appraiser was duly designated to appraise her estate for the purpose of the transfer tax, and from the order entered upon his report this appeal is taken by the administrator. Mary Ann Simpson, the mother of the decedent, married Charles Simpson. The latter had been married previously and had one daughter, Emma S. Orr. The children born of the marriage of Charles Simpson and Mary Ann Simpson were Charles, Miriam, Silas Francis, Amanda E., and Mary Loretta. Charles Simpson, the father, and Charles Simpson, the son, died prior to the death of Mary Ann Simpson. The latter died on March 12, 1902, leaving, a will by which she devised to her three daughters, Miriam, Amanda E., and Mary Loretta, the premises known as No. 218 West Fiftieth street and No. 276 West Seventy-Third street, in the city of New York. She further directed that the rents from these houses should be paid to her daughters Amanda E. and Mary Loretta during their lives and the life of the survivor. She gave to her executrix power to sell and convey any of1 the real estate of which she died seised. Mary Ann Simpson also died seised of the premises Nos. 581-583 Eighth avenue, and she devised one-fifth or said premises to each of her children. Silas Francis Simpson, one of the children, died on the 29th day of March, 1908, intestate. Mary Loretta Simpson duly qualified as executrix under the will of her mother, and thereafter, by virtue of the power [1101] of sale contained in the said will, she sold and conveyed the premises No. 218 West Fiftieth street and No. 276 West Seventy-Third street. The questions presented by this appeal are: First, whether, upon the death of Silas Francis Simpson, intestate, his half-sister, Emma S. Orr, inherited equally with his full brother and sisters the interest in the premises Nos. 581-583 Eighth avenue devised to him by his mother, Mary Ann Simpson; second, whether, in the event of Emma S. Orr being excluded from participation in the one-fifth interest of which Silas Francis Simpson died seised, she became entitled, upon the death of the decedent herein, to a share of the interest in the premises at Nos. 581-583 Eighth avenue which the decedent inherited from Silas Francis Simpson; third, whether, upon the death of the decedent herein, her interest in the proceeds of the sale of premises No. 218 West Fiftieth street and No. 276 West Seventy-Third street was real estate or personal property. Section 90 of the Decedent Estate Law (Consol. Laws 1909, c. 13) provides that: “Relatives of the half blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who were not of the blood of such ancestor shall be excluded from such inheritance.” [1] The interest of Silas Francis Simpson in the premises Nos. 581— 583 Eighth avenue was 'derived from the will of his mother, Mary Ann Simpson. Emma S. Orr, who is the daughter of Charles Simpson by his first marriage, was not of the blood of Mary Ann Simpson. Therefore Emma S. Orr did not inherit from Silas Francis Simpson any interest in the real estate devised to him by his mother. Mary Loretta Simpson, the decedent herein, being a sister of the whole blood of Silas Francis Simpson, inherited from him her proportionate share of his interest in the premises Nos. 581-583 Eighth avenue, namely, one-fourth of his one-fifth. The decedent was entitled to this one-fourth at the time of her death. Having died intestate, leaving no father and no issue, her brothers and sisters inherited this interest. Emma S. Orr was of the blood of the decedent’s ancestor, Silas Francis Simpson, because her father was the father of Silas Francis Simpson. The term “ancestor,” as employed in section 90 of the Decedent Estate Law, means the immediate ancestor from whom the intestate received the estate, and not some remote ancestor. McCarthy v. Marsh, 5 N. Y. 263; Valentine v. Wetherill, 31 Barb. 655; Wheeler v. Clutterbuck, 52 N. Y. 67. Therefore Emma S. Orr inherited from Mary Loretta Simpson her proportionate share of the one-fourth interest which Mary Loretta Simpson inherited from her brother Silas Francis Simpson. As the decedent was entitled to one-fifth of the premises situated at Nos. 581-583 Eighth avenue under the will of her mother, and to one-fourth of one-fifth as heir of her brother Silas Francis, she had a one-fourth interest in the premises at the time of her death. This interest should be apportioned by the appraiser as follows: Miriam Simpson, 19/oo; Amanda E., 19/eo; children of Charles Simpson, 19/eo; Emma S. Orr, 1/zo. Mary Loretta Simpson [1102] qualified as executrix under the will of her mother, Mary Ann Simpson. [2] In accordance with the authority conferred upon her as such executrix, she sold and conveyed the premises devised by Mary Ann Simpson to Miriam, Amanda E., and Mary Loretta Simpson. The will did not contain a positive direction to the executrix to convert the real estate into personalty, nor was it necessary, for the purpose of carrying out the intent of the testator as expressed in the will, that the real estate should be converted into personalty. Therefore the doctrine of equitable conversion has no application to the question whether the proceeds of the sale of the real estate should be considered real estate or personalty. The executrix was given authority to sell the real estate, and in accordance with that authority she sold and conveyed it and invested the proceeds in. bonds and mortgages. It is true that the decedent devised real estate to her three daughters, but it is equally true that she gave to her executrix the power to sell such real estate. The fact that she gave such power shows that she did not intend that her three daughters should becomé immediately seised and possessed of the premises devised. The devise was made subject to a power of sale. That power was exercised, and the three daughters then took a vested interest in the proceeds of such sale. The daughters of Mary Ann Simpson had a vested interest in the particular real estate devised to them so long as the power of sale not was exercised by the executrix, but as soon as the real estate was sold under the power their interest in the real property ceased and was immediately transferred to the proceeds realized from the sale of the real estate. It cannot be maintained that the three daughters of Mary Ann Simpson had any interest in the premises No. 218 West Fiftieth street and No. 276 West Seventy-Third street after they had been sold and conveyed by the executrix. Their interest after the sale of' the premises was an interest in the proceeds realized from such sale, and this was personal property. Matter of McKay, 75 App. Div. 78, 77 N. Y. Supp. 845. It would therefore appear that Emma S. Orr, the half-sister of the decedent, became entitled upon the death of the decedent to her distributive share of the decedent’s interest in the proceeds of the sale of the premises No. 218 West Fiftieth street and No. 276 West Seventy-Third street. [3] As this interest is not payable until the death of Amanda E., the appraiser should ascertain its present value for the purpose of the transfer tax. The order fixing tax will be reversed, and the appraiser’s report remitted to him for correction, as herein indicated.