(dissenting):
I concur with. Mr. Justice Patterson, except as to .the liability to taxation of the interest of the remainderman under the 17th clause of the will to taxation. I think the surrogate was right so far as the remainders were contingent, there being at the death of the testator no person in being in whom the remainder vested. In such a case there was clearly no transfer of the remainder upon the death of the testator, for there was no transferee, and I assume that to make a valid transfer there must be a transferee as well as a transferrer. Where there was a life estate given with a power of appointment of the remainder, it would seem that until that power was exercised there was no transferee, so that the provision of the Tax Law which taxes a transfer could not apply. A different interest, it seems to me, was created by the bequest and devise of the rest, residue and remainder of the estate by the 17th clause of the will, for by that clause there was a devise and bequest to the executors in trust to hold the property for the benefit of the testator’s son Alfred G. Vanderbilt until he should arrive at the age of thirty years. Upon his arrival at that age he was to be paid one-half of the remainder of the estate. The *36executors were to hold the remaining one-half in trust for him until lie should arrive at the age of thirty-five years, when he was to receive the balance of the estate, with a provision for the final disposition of the property held in trust in case Alfred G. Vanderbilt should die before he arrived at the age at which he would be entitled to the possession of the estate. I think that this created a remainder whicli vested in Alfred G. Vanderbilt, subject, however, to be divested by his death prior to the time at which he would be entitled to receive the absolute title to the property. There was, therefore, a transfer of the property to Alfred G. Vanderbilt, and that brings the case, if it was taxable, within the provision of section 230 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 76 of the Laws of 1899. That section now reads as follows: “ - * * Whenever a transfer of property is made, upon which there.is, or in any contingency there may be, a tax imposed, such property shall be appraised at its clear market value immediately upon such transfer, or as soon thereafter as practicable. "x" * * Where any property shall, after the passage of this act, be transferred subject. to any charge, estate or interest, determinable by the death of any person or at any period ascertainable only by reference to death, the increase of benefit accruing to any person or corporation upon the extinction or determination of such charge, estate or interest, shall be deemed a transfer of property taxable under the provisions of this act * * * .”
By the 17th clause of the will this remainder was transferred to Alfred G. Vanderbilt, the actual- possession being postponed until lie should arrive at the age of thirty and thirty-five years respectively. It is true that his absolute interest would be subject to be defeated by his death prior to his arriving at the age of thirty-five years, but there was a valid transfer of the property to him, and it was that valid transfer that was taxable under the provision of the statute to which attention- has been called. - By express provision of this statute, the tax was to be paid out of the property transferred, and I can see no reason why this provision of the act should not be enforced in this case. Upon no contingency could there be either a less or greater tax than if the property had vested actually in Alfred G. Vanderbilt, for the will provided that in case of his death prior to the time at which he would be entitled to receive the property it *37should go either to his children, if he left any surviving, or to his brothers and sisters who were of the same kin to the testator. All that was necessary to make this estate now taxable was that there should be a transfer of the estate. In my view, there is such a transfer, the legal title vesting in Alfred Gr. Vanderbilt, the right to possession being merely postponed until the termination of this trust, and such transfer is, I think, taxable.
I think the order of the surrogate should be modified to the extent indicated.