Opinion
May 14, 1943.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and Harris, JJ.
Order modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Memorandum: The allowance of $5,000 to Layton Vogel, attorney for Jessie L. Breitweiser, committee of the person and property of John R.C. Breitweiser, is not deductible from the value of the gross estate either as an administration expense or as a claim against the estate within the meaning of section 249-s Tax of the Tax Law. Therefore, the order should be modified by striking out said allowance and the matter should be remitted to the Surrogate's Court for further proceedings to fix the tax. (See Matter of Westurn, 152 N.Y. 93; Matter of Sanford, 66 Misc. 395; Matter of Jacobs, 2 N.Y.S.2d 973.) All concur, except Crosby, P.J., and Harris, J., who concur as to the modification and vote to modify the order further by striking out the words: "Jessie L. Breitweiser and Laura M. Gibson, in payment of claim for support and maintenance of John R.C. Breitweiser, per Decree November 16, 1939 . . . $3500.00," on the ground that such allowance is not shown to be a claim within the purview of the statute. (The order modifies a previous order and allows certain deductions which had been disallowed by the tax appraiser.)