as one, and both entitled out of the income of the estate, so far as creditors are concerned, furnishes a just rule and a safe basis for adjustment where the question of support arises between themselves.

Under these principles, if the whole income was directed to be paid to, or used for the support of the husband, and if the will contained no directions for the accumulation and disposition of the surplus, the case of Wetmore v. Wetmore might be said to be controlling. In that case the whole income was to be used for the support of the husband. In this case the testatrix limited the income to the personal support of the husband and vests in the trustee a discretion as to the amount thus to be expended, disposing of any accumulated or surplus income. The testatrix seemed to contemplate the accumulation of a surplus, and made provision for its disposition.

The facts in this case are clearly distinguishable from Thompson v. Thompson, 52 Hun, 456, cited by the contestants. In that case the will directed the trustee to pay over the net income to the cestui que trust for a certain time, and then to pay the principal to him.

The court must look after the intention of the party making the gift, and that intention, when ascertained, is binding upon the conscience. The trustee is not only empowered, but is required to act in accordance with the will of the testatrix, who created the trust. Bull v. Bull, 8 Conn. 47; Erickson v. Willard, 1 N. H. 217; Knight v. Knight, 3 Beav. 148-172, 175; Story's Eq., 1070, and note. I think the trustee would not be warranted in complying with the order given to the contestant or in paying such income, or any part of it, to her under the assignment in question, but that he was right in using it for the personal support of the cestui que trust.

Therefore, the objections to the executor's account are overruled.

Objections overruled.

Matter of the Appraisal of the Property of GEORGE JONES, Deceased, under the Act in Relation to Taxable Transfers.

(Surrogate's Court, New York County, Filed July, 1899.)

1. TRANSFER TAX-APPRAISAL OF WIDOW'S LIFE ESTATE-LAWS 1887, CHAP. 713, §§ 2, 13.

The widow of decedent, a life tenant under his will, died intermediate the death of decedent and the transfer tax appraisal. Held, that the value of the widow's interest should have been made in accordance with sections 2 and 13 of chapter 713, Laws 1887, and not measured by the term of its actual duration.

2. SAME VALUE OF GOOD WILL-SHARES IN PUBLISHING ASSOCIATION. The value of the good will of a newspaper is taxable. In estimating the shares in an unincorporated joint stock newspaper publishing association it is proper to include the value of the real estate used in such business.

Modified, 69 App. Div. 237. See note.

Appeal from an order on report of appraisers adjudging the property transferred by the will of George Jones to be taxable under the Transfer Tax Acts. Facts in opinion.

Einstein & Townsend, for executors and others; Armitage Mathews, special guardian; B. F. Dos Passos, for Comptroller, respondent.

VARNUM, S.- This appeal was submitted to Judge Arnold, was left undisposed of by him, and has been resubmitted to me for decision. The widow of decedent, who was a life tenant under the will of testator, died intermediate the death of the decedent and the transfer tax appraisal. The appraiser calculated the value of the widow's interest, as measured by the term of its actual duration, and not in accordance with the provisions of the act requiring a valuation by the Supreintendent of Life Insurance as of the date of death. Objection is made

to this method of appraisal, it being claimed that it should have been made in accordance with sections 2 and 13 of chapter 713 of the Laws of 1887. In this claim the appellants are correct. Section 2 of the act of 1887 provides that when any legacy upon which a tax is imposed shall be an estate or interest for a term of years, or for life, etc., “the entire property or fund by which such estate, income or interest is supported, or of which it is a part, shall be appraised, immediately after the death of the decedent, at what was the fair and clear market value thereof at the time of the death of the decedent, in the manner hereinafter provided." Section 13 provides that the value of such estate, income or interest shall, "for the purposes of this act, be determined by the rule, method and standards of mortality and of value which are employed by the superintendent of the insurance department." The appeal in this respect is sustained. The argument on the above points contained in the brief of counsel for the Comptroller is based upon the language of the statute of 1892. The act of 1887, which governs this case, is different, and the language which counsel for respondent quotes in support of his contention does not occur in the earlier law. With reference to the inclusion in the appraisal of the estimated value of the good will of the newspaper enterprise in which the testator was interested, I regard the decision in Boon v. Moss, 70 N. Y. 473, 474, as controlling, and the objection based upon this ground is overruled. See, also, People ex rel. Johnson Co. v. Roberts, 159 N. Y. 70. The testator was the owner, at the time of his death, of forty-six shares of the association known as "The New York Times," which was, prior to his death, an unincorporated joint stock association. This property, at the time of the decedent's death, consisted of land and the building thereon, known as the Times Building, and certain personal property, such as machinery, presses and other effects required in the publication of the paper. The real es

tate was stipulated to be of the value of $1,250,000 and the personal property, referred to above, was valued at $34,000. The latter, together with the good will of the business, was sold by the association within two years after the decedent's death for $900,000. The important point to be determined upon this appeal is whether the inheritance tax is chargeable upon testator's interest in the real estate above mentioned. Counsel have not referred me to any binding authority upon this question, nor have I been able, by individual research, to discover a precedent. A joint stock association is bybrid in its character. It is regarded for some purposes as a corporation and for other purposes as a partnership. Such associations are recognized by the early statute, which provided for the manner in which such associations might be sued, and by the statute of 1867 (Chap. 289), which provides for the man ner in which the title to land owned by such a company shall be held. If we regard a joint stock association as analogous to a partnership, then it must follow that the real estate should not have been included in the appraisal for the purposes of taxation. It is devised by the will to lineal descendants, and would have passed to them as real estate, notwithstanding that, for purposes of liquidation as between the partners themselves and as to creditors, it would be regarded as personalty. Matter of Holland, Surr. Decs. 1897, p. 274; s. c., N. Y. Law Jour., May 13, 1897, and cases cited. If we regard it as analogous to a corporation, then the shares of stock therein owned by the testator would be taxable; and, in ascertaining the value of those shares, the real estate would be included in making the estimate. In my opinion the appraiser was correct in considering the value of the real estate in making his valuation. The statute provides that real estate shall be held by such an association in a manner similar to that in which it is held by corporations; and joint stock associations are regarded as corporations for general purposes of taxation.

Art. 9, chap. 908, Laws of 1896. A creditor of the testator would have had no right or remedy as against this real estate. His only right would be to resort to the share of the profits to which the debtor was entitled. If judgment were recovered as against a shareholder, no part of the land could be taken in execution, though the shares might be taken and disposed of. As was said in Myers v. Perigal, 21 L. J., C. P. 217, the shareholder subscribes to a common fund, and his right depends upon the contract he makes. The interest of the shareholder is founded upon this contract, and passes as personalty. The argument advanced by the appellants, that it is against the policy of the law to tax real estate because it pays its just share of taxation periodically, is without avail. A similar argument might be used with reference to taxation of the share of incorporated bodies; yet the transfer of shares therein is liable to this tax. In ascertaining the value of such shares the real estate owned by the company is taken into consideration, notwithstanding they are compelled to pay a tax upon the same periodically. The matter will be remitted to the appraiser to report anew, in conformity with the views expressed.

NOTE.-The order of the surrogate was modified by the Appellate Division (69 App. Div. 237) by deducting therefrom the interest of the testator in the real estate, but this was reversed by the Court of Appeals, 172 N. Y. 575, and the order of the surrogate affirmed.