Opinion
February 2, 1998
Appeal from the Surrogate's Court, Rockland County (Weiner, S.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the decree is reversed, on the law, and the petition is dismissed; and it is further,
Ordered that the appellant is awarded one bill of costs payable out of the estate.
The appellant Beth Manning was the distributee of the proceeds of an insurance policy maintained by the decedent Michael Gilligan in the amount of $192,202 72. In January 1996, Kevin Gilligan, the administrator of the estate of the decedent, commenced this proceeding seeking to recover, inter alia, Manning's proportionate share of State and Federal estate taxes, to wit: $38,051.82. After a nonjury trial, the Surrogate granted the petition and directed the appellant to pay that amount to the estate. We reverse and dismiss the petition.
Pursuant to EPTL 2-1.8 (a), all estate tax payments are to be apportioned equitably among persons interested in the gross estate ( see, Matter of Collia, 118 A.D.2d 778, 779). Liability for estate taxes under the statute is cast personally upon the persons benefited rather than upon the estate, although the estate remains the conduit for payment ( see, Matter of Ratta, 128 Misc.2d 683, 684). There is a strong policy favoring statutory apportionment in the absence of a clearly-expressed intention to the contrary in the will ( see, Matter of Pepper, 307 N.Y. 242; Matter of Mann, 186 A.D.2d 500; Matter of Mollenhauer, 257 App. Div. 286; Matter of Ritzheimer, 25 Misc.2d 515). Here the decedent died intestate. Thus, the Surrogate properly held Manning to be liable for her proportionate share of the estate taxes, or $38,051.82. However, in his decree, the Surrogate failed to account for his finding that Manning had already paid into the estate the sum of $40,000 toward such taxes, at the direction of and in a manner prescribed by the estate administrator Kenn Gilligan. Thus, the direction in the decree requiring additional payment by Manning in the amount of $38,051.82 resulting in a windfall to the estate. Accordingly, the petition must be dismissed.
We note that although Manning paid more toward estate taxes than is alleged to be her proportionate share, she seeks only dismissal of the petition.
Ritter, J. P., Altman, Friedmann and Luciano, JJ., concur.