The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-04-18
CAN'T TAX DELAN0 ESTATE.
o,r CLASS OF INHERITANCE
MITES UNCONSTITCTIONAL.
,,unx of the Appellate Division says
1n,, n Power Of Appoint ment 10 Not
Ts,abe where the Criminal Deed OF
,m Annotated the Present Law.


Ts,ab,e where the Criminal Deed OF
am Annotated the Present Law.
II decision dismissing the proceedings
,,.,bu,ed by the State Comptroller TO tax
1.-sin property left to Arthur Astor Carey
=, Mrs, Laura Aston Delano. who died
:. J,ne, 1902. the Appellate Division OF the
s.r,eue Court handed down an opinion
..s,erday attacking the constitutionality
clause of the Inheritance Tax law a.
amended in 1897
W., Deano received in 1s4s from her
father. William Backhouse Aston. a deed
ior property in Lafayette place and in is4o
.no,her deed Of $4,000 worth OF public
Art certificates OF Ohio. Both deeds were
Si,pessed by James @. Gallatin and John
J,oob Aston, Jr.. and in each was clause
,royiding that at Mrs. Delano's death the
rroperty was to go to her issue or to that Of
ter brothers or sisters. with an additional
clause giving her power Of appointment
over the propert should she desire to leave
rto any particular one Of the issue.
In her will she exercised this power by
,anine Arthur Aston Carey as the devisee
of,hp property. After the will was probated
the State Comptroller notified Mr.. Carey
10 appear in proceedings for the assess
ment of an inheritance tax on the property.
Mr.. Carey appeared only TO object to the
surroga,e's jurisdiction over tho proper ty
ard to make a motion for the dismissal
Of the proceedings This motion was de-
nied ard an appeal was taken, in which
Mr.. Carey's contention was sustained.
The Appellate Division cites the clause
under which IL was sought to tax the prop
ery named in the deeds. 1t Is Subsection
S, section ?2o, chapter 2s4, Of the Laws Of
1897 and reads as follows.
Whenever any Pc rson or corporation shall
s1,tcisA n power OF appointment derived
IRON any disposition OF property, made either
b,iore or alter the passage OF this act. such
a 'ttransicr, taxable under the provisions OF
this act In the same manner as though the
prop rty to which such appointment relates
pow,r and had been beQueathed or devised
BY such donee by Will,
The opinion then rends,
Ia terms this amendment would SEEM
nsy apply to ne PHDrty here in IN
any distinction betwetn the disposition Of
sde bei %ase1 or sTsr the psssass Of
the act.
The opinion adds that the rights OF Mr..
Carey In the deeds were create by the donor
Of the power, w. b. Aston, and not by the
donee. Mrs. Deano, and that they were
vested rights.
Continuing, the Court says:
To impose a tax upon transfer by deed
u the exercise OF the general taxing power
OF the state; while tax on power 81 appoint
cession IA < depending upon transfer brought
about by death 1t Is not claimed Tor this
amendment Of 1897 that IL was the exercise
= ,l.a al tax INN nj n
and to be supported therefore, 1t must be. II
at all. upon the theory that 1t imposes sue
IL is not, however, within the power OF the
legislature merely by calling tax one
upon the right Of succession. TO impose what
in terms. unauestonsbly, the Legislature
has called the estate which the relator has
received a succession, and upon the RIGHT
tax: but 1t cannot change the legal nature
or character OF the property interest by APP
plying to 1t name. nor can u impose ta5
,iPP4 4e tie deeds OF " B Hstor. given in isss
and isao. by subsequently enacting that 70
The viii Of laura Aston belano. and that a.
70 II tax is due. as a tax upon the right OF
suecessi9n. as though Z was property be-
Having In mind. therefore. the fact that
the relator obtained his property rights by
~ss no SU transfer ran tax or Inheritance tax law
in existence, and that he does not obtain
lis estate by right Of succession under the
viii Of Laura Astor Delano, but acquires II
under the deeds Of ". b. Aston which were
were made many years before the grantor'
death, II follows, we think. that the attempt
II the legislature to tax such property rights
have briefly outlined, namely. that to uphold
the tax here sought to be imposed under the
suise Of taxing a right Of succession would
In feet be to sanction q tax upon property,
and for that purpose TO give to the amend:
ment Of 1907 n retroactive effect which would
be ~iolative OF the Constitution.
lawyers who read this opinion yester-
Of Appeals it would have an important
bee ring on all cnses where property Is
decided. with power Of appointment,
solely to avoid the payment OF the inheri-
tapna