In re the Appraisal under Act in Relation to Taxable Transfers of Property of the Property of White , 1906 N.Y. App. Div. LEXIS 2632 ( 1906 )

Houghton, J, (dissenting):

I do not .think this, proceeding should be dismissed. It was not so clearly established that the testator was a resident of the State of -Mew Jersey as to authorize such a disposition of the matter. I think, however, there should be a rehearing. It was error to exclude the proposed testimony of the witness Polhemus as to personal communications had by her with the testator. She was a daughter of testator and is the legatee Ida F. White mentioned in his will, Statements made by the testator to her as to changing his residence and what he intended to do in that respect were excluded-on the ground that she was incompetent to testify to them under section 829 of the Code of Civil Procedure. A legatee or distributee is not prohibited by this section from testifying to personal transactions and communications had with his testator-or intestate in a proceeding to appraise property under the Transfer Tax Act. (Matter of Gould, 19 App. Div. 352; Matter of Brundage, 31 id. 348.)

The above authorities on this proposition do not seem to- have been overruled or questioned, and they appear to be founded tipdn just principles. The tax is not against- the estate and it has no-interest in its amount: It is levied against the amount of the legacy- or distributive share passing to the legatee or distributee. The witness was interested to establish the fact that the testator was a resi-. dent of the State of Hew Jersey and was not a resident of the State v ! of New York. Her interest, however, did not - disqualify her from testifying to such material facts as she might know concerning sutih residence. ■ Her interest might affect the weight of. her testimonly but did not render her incompetent, for she was not testifying 'against the estate,-or the executors under the will. j

I think the error was sufficiently material to require a . rehearing. The order should be reversed and the matter remitted for 'a rehearing before the surrogate.

Order reversed, with ten. dollars costs and disbursements and proceeding dismissed. Order filed.