1 think the order appealed from is right and should be affirmed in its entirety. The case of Matter of Wolfe (89 App. Div. 349 ; affd., 179 N. Y. 599), relied on as authority for assessing the transfer tax upon the residuary estate at the rate of one per cent, instead of five per cent as was done in this case,- cannot be so regarded. In that case the, executors renounced and released a bequest made to them personally, so that the money bequeathed to them became a part, of the residuary estate distributable to the residuary legatees named in the will, and it was there held that the residuary legatees took directly from the testator. In this case the residuary legatees all transferred their interest in the residuum of the estate to the appellant widow. She was not named as a residuary legatee by the testator, and had no interest therein under the will, except what she acquired by this assignment.
Granted that the tax is not imposed upon the legacy, nor upon the property, but upon the succession to the property, it is the transfer from the testator to his immediate legatee which is subject to taxation, and where the latter transfers-his interest to some one else the rate of taxation is to be fixed according to the class to which the original legatee belongs, and not his assignee, although the assignee may stand in a closer relation to the testator and belong to a class whose rate of taxation would be less than the original legatee.
I think the residuum of this estate, acquired by the widow by this assignment from these remote relatives of the testator, was properly taxed at the rate of five per cent, and that the other questions were properly disposed of by the surrogate.
The order appealed from should be affirmed, with dosts payable out of the estate.
Spring, J., concurred.
Order modified in accordance with the opinion of Mash, J., and as so modified affirmed, without costs of this appeal to any party.