#### Matter of the Appraisal of the Property of the Estate of Margaret E. Bentley, Deceased.

(Surrogate’s Court, New York County,

May, 1900.)

Transfer tax — Debt due nonresident decedent from nonresident creditor, and payable in a foreign State, not taxable.

A debt due a nonresident decedent from a nonresident debtor, who merely did business as a banker in the State of New York, and *657payable in the foreign State of the common residence of the parties, is not subject to the transfer tax.

The fact that at the time of the decedent’s death, there was a balance in her favor on the books" of the debtor in New York city, does not make that balance taxable, it appearing that the decedent had no voucher for it and never had drawn checks upon it.

Proceedings under the Transfer Tax Law, upon the appraisal of the estate of said deceased. Application for a rehearing.

John C. Gulick, for appellants.

Charles M. Russell, for Comptroller.

Thomas, S.

Li this proceeding to assess a transfer tax, a legatee, upon whose interest in the estate a tax is attempted to he levied, is not precluded from testifying by any provision of section 829, Code of Civil Procedure (Matter of Gould, 19 App. Div. 352, 354; affd., 156 N. Y. 423), and the affidavit of Rosaline H. Towar is, therefore, competent evidence. The appeal to the surrogate “is in the nature of an application for a rehearing upon which new evidence may be taken bearing upon the questions involved ” (Matter of Westurn, 152 N. Y. 89, 104), and the affidavit of Thomas E. Towar may also be considered. From these two affi■davits it appears that the decedent was the mother of Mrs. Towar, and resided with her and her husband, Thomas E. Towar, at Jersey City. From time to time she made loans to Mr. Towar, and the balance due thereon is the fund which the appraiser determined to be taxable. These loans and all repayments thereon were all made at Jersey City, where all the parties resided, except that some checks of unascertained amounts were mailed at Jersey City to the address of Mr. Towar in New York, where he carried on business as a “ broker.” In the inventory filed in New Jersey this fund is described as *“*balance of account with Thomas H. Towar, banker, at decedent’s death.” It is affirmatively shown that no pass-book or voucher of any kind was delivered by Mr. Towar to the decedent, and it does not appear that the decedent ■ever drew cheeks upon the account, or that it was by the contract between her and Mr. Towar to be repaid otherwise than upon oral *658demand on him. Tinder these circumstances the whole transaction was a series of loans from a resident of the State of Rew Jersey to another resident of that State, payable there, and the balance remaining at the time of the destth of the decedent was not properly within this State, subject to the transfer tax. The fact that in the inventory the debtor is described as a “ banker ” cannot vary this result. It has never been determined that eveiy debt of a person who does business as a “.banker ” has a situs in this-State within the meaning of the Transfer Tax Law. A deposit made with a banking corporation, or trust company, or savings-bank in this State, to be repaid on checks or drafts in writing presented to the corporation at its place of business in this State, and not otherwise, is taxable here, as was said in Matter of Houdayer, 150 N. Y. 37, 41, “ because the owner must come here to get it.’The test prescribed in the case cited excludes from taxability a debt due to a nonresident decedent by a nonresident debtor. These views render it unnecessary to examine the questions raised as to the amount of tax to be charged against the interest of the infant legatee. The appeal will be sustained and an order made declaring the estate of the decedent exempt from the transfer tax. Settle order on notice.

Appeal sustained.