In the original taxation proceedings under the will of Charles, the appraiser reported the existence of the deceased’s *321conditional interest under the will of Mary dependent upon the death of William without issue, and it was ordered that further proceedings in the matter of the taxation of this interest be suspended until the determination of such event. By his will Charles specifically bequeathed this interest. By chapter 732 of the Laws of 1911, going into effect July twenty-first of that year, section 220 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), which had been amended by chapter 706 of the Laws of 1910, and under which an inheritance tax against non-residents on shares of stock had previously been imposed, was amended so as to exclude that species of property, thus repealing the previous act in this regard. There was no repeal, however, of those portions of the law which provided the machinery for ascertaining the amount of and for collecting any tax theretofore imposed. It is contended by the appellants that inasmuch as Charles died prior to William, nothing passed to his estate under the will of Mary. But it appears that the appellants as representatives of Charles took and retained possession of the securities in question claiming the same by virtue of the will. Under such circumstances they cannot now be heard to deny the title under which their possession rests.
The only other question arises out of the claim of the appellants that inasmuch as the repeal of the statute on which the tax was based took place prior to the death of William, which determined the right of Charles, the right to collect the tax fell with the repeal. Section 220 of the Tax Law, on which the tax in question was based, imposes a tax on the “transfer” of property passing by will or intestacy. It has been long settled that the inheritance tax of this State is not a tax upon property but upon the right of succession to the property and that the “transfer” occurs on the death of the testator and not at the time when the devisee acquires his right to possession. (Matter of Davis, 149 N. Y. 539; Matter of Sloane, 154 id. 109.) Also that the tax is to be determined by the law in force at the time of such death. (Id.) In Matter of Vanderbilt (172 N. Y. 69) it was held that under an amendment to the former Tax Law *322taking effect in 1899 (Laws of 1899, chap. 76, amdg. Gen. Laws, chap. 24 [Laws of 1896, chap. 908], § 230, as amd.), remainders whether vested or contingent were presently taxable at the highest rate which on the happening of the contingencies provided for, could be imposed under the provisions of the act — now section 230 of the present Tax Law (as amd. by Laws of 1911, chap. 800). (See, also, the Zborowski Case, post.) Section 222 of the Tax Law is as follows: “All taxes imposed by this article shall be due and payable at the time of the transfer, except as herein otherwise provided.” By a subsequent clause it is provided that taxes upon the transfer of certain estates in expectancy dependent “upon the happening of any contingency or future event by reason of which the fair market value thereof can not be ascertained at the time of the transfer as herein provided, shall accrue and become due and payable when the persons * * * beneficially entitled thereto shall come into actual possession or enjoyment thereof.” It was under these latter provisions of section 222 and in pursuance of a course approved by this court affirming the decision of the surrogate of this county in Matter of Zborowski (84 Misc. Rep. 342; 163 App. Div. 947) and before the reversal of our decision in that case (213 N. Y. 109), that the proceedings for the appraisal of the estate in ques-tion were suspended. In the Zborowski case the Court of Appeals held that future estates determinable upon lives were ascertainable by “deducting the value of the precedent estate determined by the method and standard of mortality and value employed by the Superintendent of Insurance,” and that the appraisal of the value of the expectant estate was hot to be postponed under the provisions of section 222, which did not apply. It seems clear from the foregoing that at the time of the death of Charles his interest under the will of Mary was subject to tax, and that the amount of such tax was then ascertainable and should have been ascertained and computed in accordance with the principles of the Zboroivski case, and should not have been postponed to await the death of William. In these circumstances I think the right of the State to impose and collect the tax was preserved by section 93 of the General Construction Law. (Consol. Laws, chap. *32322 [Laws of 1909, chap. 27], § 93; People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570; Village of Champlain v. McCrea, 165 id. 264; Cameron v. N. Y. & M. V. W. Co., 133 id. 336; O’Flynn v. Powers, 136 id. 412; Matter of Village of Le Roy, 35 App. Div. 177; People ex rel. Standard G. L. Co. v. Gilroy, 67 Hun, 323; People v. England, 91 id. 152.)
The order should he affirmed, with costs.
Laughlin, J., concurred.
Order reversed, with costs, and proceeding dismissed, with costs. Order to be settled on notice.