I do not agree with the theory upon which the transfer tax was computed, but I think that a correct result has been attained, and, if so, the method of computation - is immaterial. I agree with Mr. Justice Ingraham that this transfer tax accrued upon the death of the testator and that the tax is to be computed according to the statute in force at that time, and that neither the taxability nor the (fuantum of the tax could be affected by subsequent legislation. Under the provisions of the statute applicable at that time the State was entitled to five per cent of the property of the decedent transferred by his will to the appellants, but on account of the peculiar provisions of the will by which the life tenant was entitled to principal as well as income the exact amount of property that passed to the appellants under the will could not be ascertained until the death of the life tenant. That event having occurred, it is now known that the appellants take $30,401 and that they came into possession thereof on the 13th day of May, 1902. Theoretically the appellants were only taxable at the time of the transfer, the 13th day of October, 1887, that being the date of the death of the testator, upon the then present value or worth of this fund payable upon the death of the life tenant, which occurred on the 13th day of May, 1902, but the State was also entitled to its tax at that time, and it is manifest that it would be entitled to interest thereon since. If the tax had been deducted the fund would have been proportionately reduced. The principal being less, the accumulations thereon would *388be presumably less. The appellants have had the benefit of the tax not having been deducted. I think it is quite clear .that while the appellants were technically only liable for the tax upon the value of the fund at the time of the death of the testator, the State, on the other hand, was entitled to its tax at that time, and is both in equity arid law entitled to interest thereon. If this be so, it is immaterial whether we compute the tax upon the fund passing to the appellants at the rate prescribed by law at the time of the transfer or whether we ascertain the value of that fund at the date of the transfer and levy the tax upon such value and then allow the State interest upon the amount of the tax in the meantime — for the result is the same in either event.
Order reversed and proceeding remitted to surrogate, with ten dollars costs and disbursements.