[2-4] After the death of Tucker, the sole executor and trustee, and the death of one of the daughters, the executors of and trustees under the last will of Tucker were duly cited in the Surrogate's Court in the county of Kings to render an account of the property of the testatrix which came into the hands of Tucker as executor and trustee, and which had come into their possession, and a decree was made settling the accounts and directing distribution on the 14th day of April, 1890. That decree directed the distribution of one-half of the trust fund, other than the Pierrepont street property, which was required to be held during the life of the daughter Louisa March, who had died, as follows: To the surviving daughter one half thereof, and the other half to the two grandchildren of the testatrix, who were then living, in equal shares-and the executors of Tucker were directed to deposit with the Franklin Trust Company of Brooklyn the other half of the trust fund to the credit of the estate of the testatrix in trust for the benefit of her surviving daughter. The Atlantic Trust Company came into possession of the funds so deposited and of the premises No. 63 Pierrepont street by virtue of a decree of the Supreme Court made on the 13th day of April, 1891, in the action to which reference has been made, and the judgment in that action directed that, in the event of a sale of the Pierrepont street property with the consent of the surviving life tenant, the proceeds thereof should be divided into two equal parts, and that one part thereof should continue to be held by the trustee as constituting part of the trust fund of personal property and proceeds of real estate "upon the trusts and conditions, subject to the powers, and with the limitations over in remainder after the death, which are contained in that behalf in said will and codicils," and that the other part thereof, "constituting part of the trust fund of personal property and proceeds of real estate which, in the second clause of said will, was created for the benefit of Louisa March, now deceased, is to be distributed and paid over by the said trustee, one-half thereof to the plaintiff Lucy D. Sheafe, and one-quarter thereof to each of the defendants Elizabeth M. St. Amant and Joshua Sands March." The Pierrepont street premises were subsequently sold by the trustee, with the consent of the surviving daughter, as already stated, and the proceeds of that sale evidently constitute a large part of the estate remaining undistributed, for the total amount of the estate received by the trustee applicable to this trust was $29,911.26, and the amount thereof on hand as shown by the decision is $19,325.64.

One of the grandchildren of the testatrix who survived her died February 20, 1865. The other two were parties to the action in which. the trustee was appointed, and were by the judgment therein each given one-eighth of the proceeds of the sale of said premises. Those grandchildren of the testatrix have since died, and one of them, Joshua Sands, left issue, the defendants Florence March Turner and Louisa March now Allen, him surviving; and the other, Elizabeth Magrudder St. Amant, also left issue, the defendants George Stanley St. Amant and Marguerite St. Amant, her surviving. The point of law with respect to the construction of the will is whether these four great-grandchildren of the testatrix take the entire remainder, being the one-half of the

174 N.Y.S.-35

corpus set apart for the use of the survivor of the daughters, or whether the estates of the daughters represented by appellants are entitled to share therein. The trial court held that the said four great-grandchildren took it all, but reached that conclusion on the theory, as shown by the opinion, that there was an equitable conversion of all the real estate, including the Pierrepont street premises, immediately upon the death of the testatrix, and that therefore, under the rule of law applicable to personal property, those entitled to take are to be determined as of the time of distribution and the great-grandchildren only took the remainder. See Matter of Leonard, 218 N. Y. 513-521, 113 N. E. 491. It is contended by the appellants, however, that there was and could have been no equitable conversion with respect to the Pierrepont street property until the sale thereof, and that contention is, I think, sound. Under the original will it may be that there would have been an equitable conversion of all the real estate; but when, under the second codicil, the testatrix forbade the sale of the Pierrepont street premises without the written consent of the life tenants, or the survivor of them, it is precisely as if that provision of the codicil had been in the original provisions of the will as an exception to the provisions thereof directing a sale of the real estate (see Ward v. Ward, 105 N. Y. 68, 11 N. E. 373), and therefore there was no equitable conversion of that realty until the authorized sale thereof under the will (Savage v. Burnham, 17 N. Y. 561; Matter of Thomas, 1 Hun, 473; Underwood v. Curtis, 127 N. Y. 523-533, 28 N. E. 585; Ross v. Roberts, 2 Hun, 90, affirmed 63 N. Y. 652; Matter of Tatum, 169 N. Y. 514, 518, 62 N. E. 580; Salisbury v. Slade, 160 N. Y. 278, 54 N. E. 741; Matter of Hammond, 74 App. Div. 547, 77 N. Y. Supp. 783; Ogsbury v. Ogsbury, 115 N. Y. 290, 22 N. E. 219). I am of opinion, for the reasons already assigned, that the decision made by the trial court is correct, on the theory that the true construction of the will is that the bequest and devise of the remainder did not take effect until the death of the survivor of the daughters, and that it was the intention of the testatrix that those only who would then be her heirs at law and next of kin should take. U. S. Trust Co. v. Peters, 180 App. Div. 186, 167 N. Y. Supp. 620, affirmed 224 N. Y., 121 N. E. 895; Marsh v. Consumers' Park Brewing Co., 220 N. Y. 205-212, 115 N. E. 513; McLean v. McLean, 207 N. Y. 365, 101 N. E. 178; Matters of Farmers' Loan & Trust Co., 189 N. Y. 202, 82 N. E. 181; Fowler v. Ingersoll, 127 N. Y. 472, 28 N. E. 471; Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334.

The theory of the appellants is that the remainder in question in so far as it was represented by the Pierrepont street premises-the amount of which does not appear-became vested in the sons of the testatrix, and became divested as they died, and on the death of the last surviving son became vested absolutely, one-third in the grandchildren representing the deceased son of the testatrix and one-third in each of the daughters of the testatrix, who were the life tenants, and that therefore the estate of each daughter took one-third; and they appear to contend that the same construction should apply to that part of the remainder which concededly was personal property. I am of opinion

that the title to the remainder in question remained in the trustee until the death of the survivor of the daughters, and then passed to the four grandchildren of the testatrix as a class. Lewisohn v. Henry, 179 N. Y. 352, 362, 72 N. E. 239; Smith v. Edwards, 88 N. Y. 92-102; Shipman v. Rollins et al., 98 N. Y. 311-324; Matter of Leonard, supra; Matter of VanderRoest, 220 N. Y. 664, 116 N. E. 1081; Matter of Crane, supra; Matter of Baer, 147 N. Y. 348-353, 41 N. E. 702; Schlereth v. Schlereth, 173 N. Y. 444-449, 66 N. E. 130, 93 Am. St. Rep. 616; Hadcox v. Cody, supra.

It follows, therefore, that the judgment should be affirmed, with costs. Order filed. All concur.

(186 App. Div. 550)

PEOPLE ex rel. WARD et al. v. SUTTON, Commissioner of Assessment and Taxation, et al.

(Supreme Court, Appellate Division, Second Department. February 28, 1919.) 1. TAXATION 493(7)-REVIEW OF ASSESSMENT-EVIDENCE-ADMISSIBILITY. In certiorari proceedings to review action of assessors in refusing to reduce assessment on lands of deceased, transfer tax proceedings, which were the voluntary action of relators, and in which there was presented the affidavit of an expert selected by relators, which valued property in excess of assessment, should have been received in evidence against relators.

2. TAXATION 493(7)—REVIEW OF ASSESSMENTS—EVIDence.

In certiorari proceedings to review action of assessors in refusing to reduce assessment on certain lands of deceased, held, that reduction of assessment from $206,100 to $162,563 was unwarranted.

Appeal from Special Term, Westchester County.

Certiorari by the People, on the relation of Mary C. Ward and others, as executors, etc., to review the action of George W. Sutton, as Commissioner of Assessment and Taxation of the City of New Rochelle, and others, in refusing to reduce assessment on certain lands. From a final order reducing the assessment from the sum of $206,100 to the sum of $162,563, defendants appeal. Reversed, and new hearing directed.

The facts, outside of the estimates of value given by the opposing expert witnesses, are undisputed, and may be briefly summarized as follows:

In 1911, the testator purchased a farm upon the Quaker Ridge road (so called) in the outskirts of the city of New Rochelle. That locality is a ridge running from Mamaroneck, on the Sound, at the east, into Scarsdale, at the west, bordering upon the outer limits of New Rochelle. The land upon the ridge is high and commands a fine prospect of the Sound to the south and east, and of a very attractive rural territory in other directions. For at least 20 years or more the locality has been a favorite site for the creation by wealthy New Yorkers of fine country estates out of the old farms. Some 10 years ago, or thereabouts, the New York, Westchester & Boston Railroad was opened through the westerly part of the territory, affording ready access to New York City. The mansion house upon this tract is situated about threequarters of a mile from one of the stations of that road.

Mr. Ward in 1911 paid for the farm (some 58 and a fraction acres) at the rate of $1,900 an acre, making in all the price of $110,200. The farm buildings then were old and evidently of no special value. He died October

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18, 1915, having in the interim constructed upon the land very extensive improvements, making of it his own home. The farm is divided by the Quaker Ridge road, so that about 49 acres lie upon the south side and 9 acres upon the north side of it. Upon the south he constructed a very fine mansion, large greenhouse, chicken house, piggery, milk house, and barn, all thoroughly equipped to the very last degree, and also improved the land with drainage and shrubbery, sunken gardens, etc. Upon the other, the north parcel, he constructed a large garage, and removing the old farmhouse from the other parcel, renovated it. While the record, although very extensive, does not show the actual cost to him of those improvements, it fairly indicates that they did not cost less than $200,000.

In the fall of 1916, about one year after the testator's death, the New Rochelle assessors assessed the property in two tracts, viz.: The south parcel, land $79,200, improvements $83,300; total $162,500. The north parcel, land $18,600, improvements $25,000; total $43,600. Total for both parcels $206,100. The relators, the executors of his will, being thereunder seized or in control of the property, duly filed with the assessors their complaint and protest, claiming that the entire assessment should be reduced to $129,000. The assessors refused that request and the relators took this certiorari proceeding to review their such action, claiming the assessments to be erroneous for two reasons: (1) Overvaluation to the extent of $56,100; and (2) unequal assessment as compared with other parcels in the city generally. The assessing officers of the city made due return to the writ and asserted therein the validity of their such action. The court at Special Term, on June 21, 1917, made order of reference in the usual form. At the beginning of the hearings before the referee, it was stipulated that, in order to make the assessment of relators' property correspond with that of other property upon the same roll, it should be assessed at 85 per cent. of its market value. This would indicate that the assessors adjudged the full value of the property to be $242,353.

The referee took a great amount of evidence, which consisted, however, almost entirely of the opinions of a group of three expert witnesses for the relators and three for the defendants. The former group valued the entire tract at about $150,000; the variance between them being less than $5,000. Their valuation was, for the south parcel, land about $64,000, improvements about $64,000; and for the north parcel, land $9,000, and improvements about $13,000. The other group, those for the defendants, valued the entire tract at about $300,000, with, however, a much larger variance; that is of about $40,000. Their valuation was for the south parcel, land about $123,000, improvements $118,000; for the north parcel, land $18,600, and improvements $13,500. The referee adopted somewhat of a medium course as between the two groups and fixed the values as follows: South parcel, land $74,250, improvements $81,250, total $155,500; north parcel, land $13,950, improvements $21,800, total $35,750. Total for both parcels $191,250-and upon the stipulation made at the opening and above recited, reduced the assessment to, for the south parcel $132,175, for the north parcel $30,388, and for both a total of $162,563. Argued before JENKS, P. J., and MILLS, PUTNAM, KELLY, and JAYCOX, JJ.

William L. Moran, of New Rochelle (Walter G. C. Otto, Corp. Counsel, of New Rochelle, on the brief), for appellants. Walter H. Young, of New Rochelle, for respondents.

PER CURIAM. Although, from reading the record, we are inclined to give more weight to the opinion of the group of expert witnesses for the defendants, and although it is quite evident that the group for the relators were mistaken in their opinion as to several leading recent sales in the general locality, which they used as bases for judgment, we would feel required by the settled rules governing our determination in such cases to sustain the conclusion of the ref

eree, confirmed as it has been by the court as Special Term, were it not for two undisputed facts appearing in the record, which are of great force and do not appear to us to have been duly considered, either by the relators' experts, the referee. or the Special Term.

[1] The first of those two important, undisputed facts is that in October, 1916, the relators took the usual proceedings to have the state death transfer tax upon the estate determined, and therein presented to the tax transfer appraiser of Westchester county the affidavit of an expert selected by them, which gave the value of the property at $275,000, and their application based thereon for the fixing of the tax upon that basis was filed in the office of the clerk of the Surrogate's Court on May 3, 1917, and the tax fixed accordingly, and no appeal was taken. Indeed, the leading relator here made in that proceeding his own affidavit to that valuation as of October 18, 1915, the date of death. The original papers in that proceeding were produced from that office and offered in evidence by the defendants' counsel, and appear to have been excluded by the referee, mistakenly, as we think. The expert so employed by the relators was examined before the referee by counsel for defendants, and testified that upon that employment he, in October, 1916, valued the property at $236,000. Here again the referee excluded the affidavit in the transfer tax proceeding. According to the expert's testimony the valuation then placed was $236,000; whereas, according to the testimony of the executor, the valuation given by him was $275,000. If the papers themselves had been received in evidence, this discrepancy might not appear. Here, now, we have this very anomalous condition, namely, that at the relator's own application and suggestion the value of the property at the death of the testator, on October 18, 1915, was for the purpose of the state death transfer tax fixed at $275,000, or, giving the respondents the benefit of the discrepancy, at $236,000, whereas the referee and the Special Term have fixed that value one year later at $191,250. Evidently there is something wrong somewhere. We think that the transfer tax proceedings, being the voluntary action of the relators, should have been received in evidence against them, and that, if they had demonstrated what the proofs indicate they would, they would have made the weight of the evidence sustain the valuation of the asses

sors.

The second important undisputed fact referred to above is that it is plain from the proofs that during the four years (1911 to 1915) the testator spent not less than $200,000 in improving the property, which, with the initial cost of the farm in 1911, $110,200, made the cost of the property, all incurred within a comparatively brief time before the assessment, exceed $300,000. There is nothing in the evidence or in our common knowledge to indicate that in the year between the death of the testator and the assessment there had been any general depreciation in the value of such property in that locality. Indeed, we have in many instances in other cases sustained a finding that the new railroad through that locality has tended to a general enhancement of values. Moreover, there is no pretence even that the improvements made by Mr. Ward upon the property were out of pro