In re the Transfer Tax upon the Estate of King , 16 Mills Surr. 536 ( 1916 )

Pound, J.—

Fannie King died August 3, 1913, leaving no husband, child or issue of a deceased child, brother or sister. Under the will of her father, Charles King, who died in the year 1862, she had the income of a trust fund of $70,750 with the power of appointment by will in favor of her children and their issue or, in case she had no child or issue,'as she might direct. In default of such appointment the fund was to go to “ her children and their issue,” or in case she left no “ child or issue ” or husband to revert to the estate of. Charles King and be divided between and among all my [his] other surviving children share and share alike in equal portions;”

Fannie King exercised the power of appointment by her will - which was duly probated by the Surrogate’s Court of ¡New York county on September 12, 1913, in favor of the respondents, her nephews, Charles K. Berwin, Albert J; Berwin, Gabriel A. Berwin and ¡Nathan A. Berwin, in equal shares. They are the children of her sister, Jane Berwin, deceased, and at the death of Fannie King they were the only surviving heirs at law and next of kin of their grandfather, said Charles King.

These nephews of Fannie King and grandchildren of Charles King rejected the title tendered to them by the will of Fannie King and asserted that their title to the fund was perfect without it for the reason that if the power of appointment had not been exercised by Fannie King they would nevertheless take under the rule in the Lansing Case (182 N. Y. 238), and the Slosson Case (216 N. Y. 79). If their right to take this trust fund from their grandfather, Charles King, can clearly be established, the transfer is not taxable. Charles King died many years before the State taxed transfers by will or inheritance, and the rule is well established that where appointees take nothing by virtue of the exercise of the power which they would not take- without it a disclaimer under the one source of title and an exclusive claim under the other will in such cases relieve the fund from the transfer tax.

The question is whether the title of respondents is perfect without the power of appointment exercised by their aunt in their behalf. They claim, first, that the direction of Charles King that in default of the exercise of said power by Fannie King the fund shall he divided between the “ surviving children ” of Charles King should be so construed as to include grandchildren under the rule that “ the term ‘ children ’ may include issue however remote, and will be held so to include whenever the reason of the thing demands it.” (Prowitt v. Rodman, 37 N. Y. 42, 58.)

Against this rule may be balanced the rule that “ Nothing is better settled in the law of wills than that the term ‘ children ’ does not include grandchildren or more reinóte descendants, unless there is something in the will to show that the word was used in a broader sense. * * * Where, however, a testator writes or speaks of his children in general terms he does not include grandchildren.” (Pimel v. Betjemann, 183 N. Y. 194, 200.)

The respondents herein certainly gained something by the power of appointment exercised by Fannie King. Their title was perfected to the extent that it was not left to depend upon the correct application of shifting rules of interpretation which sometimes include grandchildren in and sometimes exclude them from the term “ children.” The only “ reason of the thing ” which demands that the word “ children ” should include “ grandchildren ” in this case is that if respondents are so included by a strained application of the law of wills, the transfer to them may escape taxation. The reason is not convincing. If they see fit to reject the clear title that the will of Fannie King gives them “ the reason of the thing ” requires that they should! show an equally good title under the will of Charles King and this they fail to do.

But they urge that if the word “ children ” does not include “ grandchildren ” there is then a partial intestacy and they take from the estate of Charles King under the rules of intestate succession, which would equally exempt the transfer from taxation. Intestacy must be considered as of the death of the intestate and not as of the death of the life tenant. (Clark v. Cammann, 160 N. Y. 315.) It does not appear that the Berwins are entitled to take merely because they are the only next of kin of Charles King who 'survived Fannie King; and again, their claim based on this ground rests on the possible application of technical rules for the construction of the will of Charles King, and not on the clear language of the will of Fannie King. Exemption from the transfer tax under this claim should appear with reasonable certainty, and should not be laboriously spelled out with the aid of canons of construction formulated with a view to determining the intent of the testator when the language of the will is ambiguous. The intent of Charles King was that the fund should not pass under his will nor revert to his estate unless his daughter* failed to exercise the power of appointment. We are doing no violence to his intention when we refuse to change bis language or to force partial intestacy upon him. The obvious construction of the-two wills leads to the conclusion that respondents received the trust fund pursuant to the exercise of the power of appointment by Fannie King only, and it follows that the fund was subject to the transfer tax.

The orders of the Appellate Division and of the surrogate should! be reversed, with costs in all courts, and the original pro forma, taxing order affirmed.

Willard Bartlett, Oh. J., Chase; Collih, Cuddeback and Seabury, J'J., concur; Cardozo, J., not sitting. ■

Orders reversed, etc.