Martin J. Cregan, who died May 5, 1934, was a resident of Bronx county; Ms last will and testament and codicil thereto were duly admitted to probate in the Surrogate’s Court of Bronx county, and letters testamentary thereon were issued on June 14, 1934, to Sarah Y. Cregan and Martin C. Cregan, as executors.
The estate tax appraiser who was appointed pursuant to the provisions of section 249-u of the Tax Law, for the purpose of appraising the estate of said decedent, made a report to the surrogate wMch showed that the value of the gross estate was $31,881.52 at the time of testator’s demise; that the total deductions were $5,003.27; and that the value of the net estate was $26,878.25. The report also set forth that the exemptions allowed by section 249-q of the Tax Law were $7,717.19, on account of the portion of the net estate transferred to the widow, and $5,000 on account of the transfer to the executors of the remainder in the residuary estate after the widow’s life estate, making the total exemptions $12,717.19.
A pro forma order assessing the estate tax was entered thereafter, wMch was modified by an order entered July 3, 1935, on the appeal from such pro forma order to the surrogate. The modified taxing order assessed a tax of $141.61 on a net estate of $14,161.06, wMch represented the aforesaid value of the gross estate, less the aforesaid deductions and exemptions.
The executors and residuary legatees appealed to the surrogate from the modified taxing order, on the grounds (a) that the appraiser had allowed an insufficient sum as a deduction for the fee of the attorney who represented the estate, and (b) that exemptions *202aggregating $30,000 should have been allowed under section 249-q of the Tax Law on account of transfers to the six children of the decedent, instead of the exemption of $5,000 that was allowed.
The surrogate dismissed that portion of the appeal relating to the amount of the attorney’s fee, without prejudice, and that question is not before this court.
That portion of the appeal relating to the amounts of exemptions to be allowed was sustained, and an order was entered on February 3, 1936, declaring the estate to be exempt from tax under article 10-C of the Tax Law.
From the last-mentioned order the State Tax Commission appeals to this court.
The decedent’s will created a trust of the residuary estate, and directed that the income thereof should be paid to his widow for life. Upon the widow’s death the corpus was to be divided among the decedent’s six children in specified proportions.
Paragraph eleventh of the will provided as follows:
“ Eleventh. If any of the beneficiaries, who take out of my residuary estate, shall die before my beloved wife, Cecelia Elizabeth Cregan, then in that event I will and direct that the proportionate part that the said beneficiary would have taken shall be divided equally among my remaining beloved children living at the time the said residuary estate is divided as provided in paragraph tenth of my will herein.”
The particular portion of article 10-C of the Tax Law, which imposes the estate tax, that is of importance in the determination of the issue raised by this appeal, is contained in section 249-q, and reads as follows:
“ § 249-q. Exemptions. The tax of four-fifths of one percentum of the amount of the net estate not in excess of one hundred and fifty thousand dollars imposed by section two hundred and forty-nine-n of this article shall not be payable with respect to “ a. The amount of the net estate not exceeding twenty thousand dollars transferred to a husband or wife; I
“ b. The amount of the net estate, not exceeding five thousand dollars in each instance, transferred to a lineal ancestor or descendant, adopted child, stepchild, or lineal descendant of an adopted child or stepchild, or to a brother or sister, or to the wife or widow of a son, or to the husband or a widower of a daughter, or to any child | to whom the decedent for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent, provided, however, such relationship began at or before the child’s fifteenth birthday and was continuous for said ten years thereafter.”
The executors and residuary legatees contend that the remainder *203in the residuary estate is vested in the children and they are presently the owners of the residuary estate, so that each may have the benefit of an exemption.
The State Tax Commission contends that exemptions are allowable only in case persons specified therein are certain to receive a share of the estate. In this case it is certain that a child or children of the testator will receive the remainder in the residuary estate, after the widow’s life estate, but, in view of the fact that only such of the children as survive the widow will take, it cannot now be said with certainty that more than one child will be entitled to an exemption, and, therefore, only one exemption, in the sum of $5,000, is authorized.
The surrogate relied largely upon the decision of the surrogate of Saratoga county in Matter of Smith (143 Misc. 606; 149 id. 540), which sought to distinguish Humes v. United States (276 U. S. 487).
Since the surrogate’s opinion in the case at bar was written, the Smith case has been reversed by the Appellate Division, Third Department (246 App. Div. 99), and the decision of that court is directly in point as an authority here.
The surrogate, in deciding the case at bar, cited Matter of Wimpfheimer (N. Y. L. J. Jan. 10, 1933, p. 173) and stated that in that case an exemption was allowed for each grandchild. As a statement of fact that is correct, but the case is not at all in point. All that the surrogate held in that case was that the interests of the grandsons were indefeasibly vested. This being so, each was, of course, entitled to an exemption.
He also cited Matter of Bob (N. Y. L. J. Aug. 13, 1932, p. 548). This case sustains the contention of the State Tax Commission.
Exemptions under section 249-q of the Tax Law are allowable only when it is certain that the persons specified therein will receive property from the estate of a decedent, and cannot be permitted where transfers to such persons are dependent upon survival of the beneficiary although vested in the legal sense at testator’s death.
The State Tax Commission urges that the provisions contained in paragraph eleventh of the will make it clear that there is no certainty that more than one of the children of the testator will receive a share in the remainder of the residuary estate. It states that this is so because the remainder of the residuary estate upon the death of the widow, the life tenant, is to be divided among the children living at the time. It may be, it is further argued, that all of the children will predecease the widow, in which event the remainder in the residuary estate will pass by intestacy, and the amount of exemptions on account of transfers to children would be in excess of $5,000, but, if only five of the children predecease the widow, *204the remaining child will take the entire residuary estate, and there will be but one exemption of $5,000. This was the ruling adopted by the appraiser and the pro forma order directed its approval. The State Tax Commission was content with this determination of the pro forma order and did not appeal therefrom to the surrogate. Accordingly that rule is the law of this case as to that Commission. We find that there can be but a single exemption allowed here, and, therefore, the grant of exemptions to each child’s share in the estate to the extent of $5,000 was error.
The fact that each of the six children has survived the mother does not alter this construction of section 249-q of the Tax Law.
The decree should be reversed, with costs, the taxing order entered July 3, 1935, should be reinstated, and the matter remitted to the surrogate of the county of Bronx for further action in accordance with this opinion.
Martin, P. J., Untermyer and Cohn, JJ., concur; Dore, J., dissents and votes for affirmance.