I dissent and vote to affirm. Paragraph “ fourth ” after directing the payment of fifty per cent of the net income of the estate to the widow, further provides that such payment shall be made free and clear of all taxes whatsoever, said taxes to be borne and paid out of the general estate, and that the balance of the net income shall be paid to the children of the testator. The simple and natural construction of this language would seem to be that the testator had in mind the payment of such taxes as were imposed upon the estate, and that the payments from the estate were to be made free and clear of any taxes. When the reference to taxes is so read, it is not necessary to construe the term " general estate ” as meaning “ net income.” A tax on income, on the contrary, is a tax upon the money as received by the beneficiary, and is not a tax on the payment from the estate, and hence it is clear that the testator did not intend,- by this provision, that the tax on the income received by the widow should be paid out of the general estate. As was said in Travis v. Yale & Towne Mfg. Co. (252 U. S. 60, 69): “ The personal condition of the recipient, and not the amount or character of the payment made, constitutes and determines the fact of net income. It seems, therefore, impossible to conceive a net income for purposes of this taxation separate and distinct from the person receiving it.”
In an interpretation of the Federal Income Tax Law, as contained in section 219 of the Revenue Act of 1918 (40 U. S. Stat. at Large, 1071) and in section 219 of the Revenue Act of 1921 (42 id. 246), which has been revised by section 219 of the Revenue Act of 1924 (43 id. 275), the Income Tax Unit of the Bureau of Internal Revenue of the United States Treasury Department in decision 1215 has held that where a testator left a sum of money in trust with instructions to the trustees to invest it and to pay out of the income certain annuities of specified amounts, said annuities to be paid “ free from all Federal, State, city or other taxes, which taxes shall be paid out of the trust estate,” the liability for the payment of the income tax on the annuities is that of *7the beneficiaries and not that of the trust estate, saying: “ The provision of the will quoted is held to be applicable only to such taxes as are a direct charge against the trust, the payment of which by the trustees out of its income might work a diminution of the amount of income distributable to the beneficiary. Since the amount of income distributable in this case passes undiminished by income tax, it is not permissible, for income tax purposes, for the trustees to pay the income tax out of the principal so that the beneficiary would not be obliged to return the amount of the annuity as income.” (Montgomery on Income Tax Procedure [1925 ed.], 1389; Cum. Bulletin I-1, p. 217.)
This view is also strongly fortified by the provision in paragraph “ fourth,” that the taxes on the payment of the income to the widow shall be paid from and out of the “ general estate.” It cannot be said that the words “ general estate ” refer to the balance of net income after payment to the widow, for the meaning of the words themselves forecloses such a construction. The words “ general estate ” plainly refer to the entire estate remaining after the payment of debts, funeral and testamentary expenses. (Lessler v. De Loynes, 153 App. Div. 903.) Moreover, a strong argument against construing the words “ general estate ” as meaning “ the net income remaining after the payment to the widow of the fifty per cent net income,” as stated in the majority opinion, is that under such a construction it would seem necessary to take out of said balance of net income all inheritance and other taxes levied upon the estate, which would obviously be a result so unreasonable as to show that the testator did not intend- that the term “ general estate ” should have such a meaning. To pay out of the general estate an annually recurring and varying tax on the income paid to the widow, would be so unwieldy a procedure, particularly since the entire estate has been disposed of by the will, as to be an additional reason to negative the contention of the appellant that the testator so intended.
It follows that the decree of the surrogate should be affirmed.
Decree reversed and a decree directed to be entered in accordance with opinion, with costs to the appellant and the respondents to be paid out of the estate. Settle order on notice.-