#### In the Matter of the Transfer Tax upon the Estate of Richard S. Ely, Deceased. Harris D. Colt and Lucius H. Beers, as Substituted Trustees under the Last Will and Testament of Richard S. Ely, Deceased, Appellants; The Comptroller of the State of New York, Respondent.

First Department,

July 10, 1913.

Tax—transfer tax—report of appraiser — report as to interests not taxable until they vest in possession.

The report of an appraiser, appointed to ascertain the transfer tax upon an estate, while the provisions of the Laws of 1892, chapter 399, section 3, that the transfer of any interest, the value of which was not ascertain*659able at the date of the appraisal, was not taxable until such interest vests in possession, were in force, stated that he had appraised all the property subject to the payment of a tax at its fair market value, and then gave a list of the same. This was followed with a statement that such property, together with the remainder of trust funds set forth, is disposed of by certain sections of the decedent’s will, which are quoted at length.

*Held,*that ijhe report of the appraiser, construed with the portions of the will quoted, established that the appraiser placed the value on all the property then ascertainable, and that the value of the interests referred to in the will could not then be ascertained;

That such interests having become ascertainable an appraiser to determine the value thereof was properly appointed.

Ingraham, P. J., and Scott, J., dissented.

Appeal by Harris D. Colt and another, as substituted trustees under the last will and testament of Richard S. Ely, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 1st day of May, 1913, appointing an appraiser in transfer tax proceedings.

*Edward W. Walker,*for the appellants.

McLaughlin, J.:

Appeal by the substituted trustees under the last will and testament of Richard S. Ely, deceased, from an order of the Surrogate’s Court appointing an appraiser to determine the value of the taxable interests in such estate which were then subject to the payment of a tax under article 10 of chapter 908 of the Laws of 1896 and the amendments thereto.

The testator died on March 7, 1894, a resident of the State of New York. On the 6th of April, 1894, an appraiser was appointed to ascertain the transfer tax. He made a report on the 11th of May, 1895, which was confirmed on the twenty-ninth of the same month. The statute then in force (Laws of 1892, chap. 399, § 3) provided that the transfer of any interest, the value of which was not ascertainable at the date of the transfer, was not taxable until such interest vested in possession. Such interests have now become vested in possession and are taxable unless the former proceeding and the order entered confirming the appraiser’s report prevents a tax being imposed.

The appellants contend that the report of the appraiser in the prior proceeding, and the order entered thereon, c'ontain no *660provision that any interests were then unascertainable, and, therefore, the failure to place a value on such interests was a determination that the same were not subject to a tax; that the order was never appealed from; and for that reason the Surrogate’s Court was without jurisdiction to make the order, the validity of which is here questioned.

It was conceded upon the oral argument of the appeal that a tax had never been imposed upon the interests here sought to be taxed, and it is clear from the language of the will that the values of such interests were not ascertainable at the time of the appraisal.-

I am of the opinion that it fairly appears from the report of the appraiser that a value was not then placed upon such interests because it could not then be ascertained. The appraiser in his report stated that he had appraised all the property subject to the payment of a tax at its fair market value, and then gave a list of the same. This was followed with a statement that such property “ together with the remainder of the three trust funds above set forth is disposed of by sections 3, 4, 5, 6, 7, and 8 ” of the decedent’s will, which are quoted at length. I think the statement in the" report of the appraiser, taken in connection with the portions of the will quoted, when fairly construed, is to the effect that he had placed a value on all of the property *then*ascertainable, and that the value of the interests given by such portions of the will could not *then*be ascertained.

It follows that the order appealed from is right and should be affirmed, with ten dollars costs and disbursements.

Laughlin and Clarke, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.

Order affirmed, with ten dollars costs and disbursements.