BALDWIN & BALDWIN. OlnrnfU ICaui ^rl:|nnl Slibrarji Cornell University Library KFN5895.G79 1901 The law of taxable transfers stete of N 3 1924 022 874 683 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022874683 Legal Works of H. NOYES GREENE. FOR NEW YORK STATE. Greene on the Tax Law, 2d Edition, Price, $3.00 Greene on the Taxable Transfer Act, 2d Edition, by A. J. NELUS, $2,2S Greene on the Highway Law, $3-^° Greene's Practical Time Table, $i.so For sale by all Law Booksellers. Sent post-paid on receipt of price, by the publisher. MATTHEW BENDER, LAW BOOK PUBLISHER , ALBANY, N. Y. THE LAW OF TAXABLE TRANSFERS STATE OF NEW YORK Being Article X of Chapter go8. Laws of 1896, Known as the Tax Law and as Chapter XXIV of the General Laws, A3 Amended, including the Amendments OF 1901, with references to all PERTINENT DECISIONS "WITH ANNOTATIONS AND FORMS BY H. NOYES GREENE SECOND EDITION REVISED AND ENLARGED BY ANDREW J. NELLIS OF THE JOHNSTOWN, w. Y., BAR ALBANY, N. Y. MATTHEW BENDER 1901 B V93€!^ Copyright, 1897, BY MATTHEW BENDER, Copyright, 1901, BY MATTHEW BENDER. Weed-Parsons Printing Co. electrotypers, printers and binders Albany, N. Y. PREFACE TO SECOND EDITION. Since the original edition the text of the statute regarding Taxable Transfers has, in many particulars, been radically changed. In 1901 nearly all the sec- tions were amended. The State Comptroller was given authority to appoint an appraiser in many counties, two in Kings and five in New York, all of them salaried; in the other counties the County Treasurer is required to act as appraiser. The power to appoint a Transfer Tax Assistant was taken from the District Attorneys, who formerly possessed the right. Besides these changes, many decisions recently promulgated, construing the statute and applicable thereto as amended, make the issuing of this Second Edition imperative. Johnstown, N. Y., May 20, 1901. A. J. N. PREFACE. Since the passage of the original act taxing in- heritances in this state, successive legislatures have amended and modified the law repeatedly, and in 1896 all the existing statutes on the subject were re- pealed and their provisions incorporated into the Tax Law (Chapter 908, Laws 1896, or Chapter 24 of the General Laws), as Article X. thereof in relation to " Taxable Transfers." The legislature of 1897 ad- opted several amendments thereto, and during the years 1896 and 1897 a number of important decis- ions have been handed down by the Court of Appeals and other courts of the state. The aim of this volume is, therefore, to present to the profession the law of taxable transfers as in force at the present time, with annotations of the various de- cisions relative thereto. All the important cases have been carefully digested, and while a majority of them are interpretative of the original act and its amend- ments, yet their application to the existing law is 5 6 PREFACE. in few cases impossible of discernment. Approved forms for use in the various proceedings under the act are also given. This much, if nothing more, may be said of the book : it is thoroughly up to date. H. N. G. Troy, N. Y.,June 14, 1897. THE LAW OF TAXABLE TRANSFERS. INTRODUCTORY. A tax upon legacies and inheritances was levied as early as a. d. 230. Augustus, having established a permanent military force for the defense of his government against foreign and domestic enemies, caused a five per cent, tax to be levied upon all legacies and inheritances of, or over, a certain fixed value. But this tax could not be exacted from the nearest of kin on the father's side. {Gibbons Roman Empire, Vol. i, Chap. VI, Sec. iii.) Legacies were taxed in England in 1 780, and suc- cession taxes have ever since been continued and extended in that country. They are a recognized source of revenue in most European countries and in many of the United States and by the Federal Government. On the loth June, 1885, an act to tax gifts, lega- cies and collateral inheritances in certain cases was [7] 8 THE LAW OF TAXABLE TRANSFERS. passed in this State. This original Act did not take effect until June 30, 1885 — the twentieth day after its final passage. {Matter of Howe, 112 N. Y. 100, aff'g s. c. 48 Hun, 235, overruling Matter of Char- davoyne, 5 Dem. 466.) It had its scope extended from time to time until in 1892 it was repealed, sub- stantially re-enacted and continued by Chapter 399 of that year, passed April 30, entitled, " An Act in relation to taxable transfers of property." This act, in its turn, was variously amended until by General Laws, chapter 24, being chapter 908 of 1896, it was repealed and substantially re-enacted as Article X of the Tax Law, which article, as amended and construed from time to time, constitutes the law of taxable transfers now existing in this State. The law of 1 892 took effect May i, 1892. {Matter of Milne, 76 Hun, 328; Matter of Fayerweatker, 143 N. Y, 1 14.) The act of 1896 did not take effect until June 15, 1896, {Matter ofSloane, 154 N. Y. 109.) The original Act was declared constitutional by the Court of Appeals in 1887. {Matter of McPher- son, 104 N. Y. 306.) Chap. 284, Laws of 1897, has also been declared constitutional. {Matter of Potter, 5 1 App. Div. 2 1 2.) These successive laws have been held to be a continuation one of the other. {Matter of Prime, 136 N. Y. 347.) So that the reference in the existing Act to "this act" and "this article" apply to and include the original and each succes- sive act. {Matter of Embury, 20 Misc. 75.) The INTRODUCTORY. 9 act of 1885 was not repealed in 1887, and taxes accrued under the former were therefore collectible after the passage of the latter Act. {Matter of Ar- nett, 49 Hun, 599.) The amendment of 1887 was not retroactive. {Matter 0/ Miller, no N. Y. 216; Matter 0/ Brooks, 6 T)Qm.. 165 ; Matter of Warrimer, 6 Dem. 211; Matter of Ryan, 18 St. Rep. 992; Matter of Cager, in N. Y. 343; Matter of Kemeys, 56 Hun, 117; Matter of Wolfe, 15 Supp. 539; Mat- ter of Hendricks, 18 St. Rep. 939.) Nor was that of 1890. {Matter of Van Kleeck, 121 N. Y. 701.) The Act of 1 89 1 did not operate to prevent a sub- sequent assessment and collection of a tax on the estate of a decedent who died intermediate the Act of 1887 and the Act of 1891 {Matter of Prime, 136 N. Y. 347); nor did the change made in the Act by the passage of Chapter 908 of the Laws of 1896, prevent the assessment and collection of a transfer tax against the estate of a party dying on December 9th, 1895. {Matter of Brundage, 31 App. Div. 348.) The particular law of taxable transfers in force at the time of the testator's death is generally the one which governs in the determination and fixing of the tax. {Matter of Milne, 76 Hun, 328 ; Matter of Moore, 90 Hun, 162 ; Matter of Sterling, 9 Misc., 224 ; Matter of Roosevelt, 143 N. Y. 1 20.) But where an estate is actually in the process of settlement it is competent for the State to impose a tax upon property in the estate not taxable at the time of the probate 10 THE LAW OF TAXABLE TRANSFERS. of the will. The State has general power to fix the time at which the right of succession should be taxed, and to define what shall be a transfer within the meaning of the statute, so long as such definition does not involve a violation of either contract or vested rights. The original Act did not constitute a contract between the State and a person living at the time of its enactment, that if he should die while the law was in full operation and unchanged, he might dispose of his estate without the imposition of any further tax upon any rights or interests acquired under his will than the tax imposed by that law. {Matter of Vanderbilt, 50 App. Div. 246, followed Matter of Vanderbilt, 58 App. Div. 619; aff'd 166 N. Y. 640.) The taxes imposed by the Act are special and not general; and the rule is that special tax laws are to be construed strictly against the government and favorably to the taxpayers. A citizen cannot be sub- jected to special burdens without clear warrant of law. Any doubt should be resolved in favor of the taxpayer. {Matter of Enston, 113 N. Y. 1 74 ; Mat- ter of Vassar, 1 2 7 N. Y. i ; Matter of Fayerweather, 143 N. Y. 114; Matter of Harbeck, 161 N. Y. 211.) Courts have no general powers or jurisdiction in these proceedings ; the only authority is to be found in the act itself. The jurisdiction is special and specially conferred by the act. {Matter of Smith, 40 App. Div. 480.) THE LAW O F TAXABLE TRANSFERS. THE TAX LAW. Chap. 906, Laws 1896, as Amended to June i, 1901. article x. Taxable Transfers. Sec. 220. Taxable Transfers. 221. Exceptions and Limitations. 222. Lien of Taxes and Payment Thereof. 223. Discount, Interest and Penalty. 224. Collection of Tax by Executors, Administrators and Trustees. 225. Refund of Tax Erroneously Paid. 226. Deferred Payment. 227. Taxes Upon Devises and Bequests in Lieu of Commissions. 228. Liability of Certain Corporations to Tax. 229. Jurisdiction of the Surrogate. 230. Appointment of Appraisers, Stenographers, etc. 230a. Composition of Transfer Tax Upon Certain Estates. 231. Proceedings by Appraiser. 232. Determination of Surrogate. 233. Surrogate's Assistants in New York County. 234. Surrogate's Assistants in Kings and Certain Other Counties. 235. Proceedings for the Collection of Taxes. ["] 12 THE LAW OF TAXABLE TRANSFERS. 236. Receipt from the County Treasurer and Comptroller. 237. Fees of County Treasurer. 238. Books and Forms to be Furnished by the State Comptroller. 239. Reports of Surrogate and County Clerk. 240. Reports of County Treasurer. 240a. Report of State Comptroller; Payment of Taxes. 241. Application of Taxes. 242. Definitions. 243. Exemptions in Article One, Not Applicable, Laws Repealed. Act Amending Takes Effect April i, igoi. § 220. Taxable transfers. — A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income there- from, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property, in the following cases : 1. When the transfer is by will or by the intestate laws of this state from any person dying seized or possessed of the property while a resident of the state. 2. When the transfer is by will or intestate law, of property within the state, and the decedent was a nonresident of the state at the time of his death. 3. When the transfer is of property made by a resident or by a nonresident when such nonresident's property is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of TAXABLE TRANSFERS. • 13 the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death. 4. (Such tax shall be imposed) When any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property or the income thereof by any such. transfer, whether made before or after the passage of this act. 5. Whenever any person or corporation shall exer- cise a power of appointment derived from any dis- position of property made either before or after the passage of this act, such appointment when made shall be deemed a transfer taxable under the provis- ions of this act in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power, and had been bequeathed or devised by such donee by will ; and whenever any person or corporation possessing such a power of appointment so derived shall omft or fail to exercise the same within the time provided there- for in whole or in part, a transfer taxable under the provisions of this act shall be deemed to take place to the extent of such omissions or failure, in the same manner as though the persons or corporations thereby becoming entitled to the possession or enjoy- ment of the property to which such power related 14 TftE LAW OF TAXABLE TRANSFERS. had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time of such omission or failure. 6. The tax imposed thereby shall be at the rate of five per centum upon the clear market value of such property, except as otherwise prescribed in the next section. (2 Heydecker's Gen'l Laws, 1930; as amended ty Chaptet' 384, Laws of 1897.) The transfer tax should be imposed upon the prop- erty in the form in which it stood when the testator died. {Matter of Opperman, 25 App. Div. 95 ; Matter of Sutton, 3 App. Div. 208 ; Matter of Livingston, i App, Div. 568.) And in case of a resident decedent, upon the personal property wherever situated. {Matter of Swift, 137 N. Y. yj.) Meaning: of " transfer." It is certainly within the constitutional power of the legislature to tax all property transferred by will, whether the motive of the testator be to make a gift or pay a debt, and the language, absolutely unam- biguous and free from saving clauses, which the legis- lature employed to accomplish that result, affords the best indication that the word " transfer " in the statute is used advisedly and according to its ordinary legal signification, which is that the owner of a thing delivers it to another person with the intent of passing the rights which he has in it to the latter. Whatever the motive of the testator, if the devise or bequest be accepted by the beneficiary, the transfer is made by TAXABLE TRANSFERS. 1 5 ■will, and the state by the statute in question makes a tax to impinge upon that performance. (Matter of Gould, 156 N. Y. 423; modifying s. c. 19 App. Div. 352.) Since there cannot be a transfer of interest to that which is non-existent, a tax cannot be assessed upon a legacy to a corporation which testator desired should be created after his death, upon certain contingencies. {Matter of Chesebrough, 34 Misc. 365.) Remainders are not subject to transfer tax until it can be determined unto whom they will ultimately be transferred. (Matter of Howell, 34 Misc. 432.) Tax upon the transfer and not upon the property. The tax is upon the right of succession. {Matter of Swift, 137 N. Y. 77). Therefore, a transfer of United States bonds after March 21, 1898, is taxable, although the bonds were issued under an act providing that they should be exempt from taxation by the United States and from taxation in any form by or under state, municipal, or local authority. {Matter of Plum- mer, 30 Misc. 19, affirmed 47 App. Div. 625 ; 161 N. Y. 631; Matter of Sherman, 153 N. Y. i.) The Supreme Court of the United States affirm- ing this decision, has recently held that the right to take property by will or descent is derived from and regulated by state law, and that the tax imposed by the Transfer Act is upon this right or privilege ; and that the state may lawfully fix the amount of the tax by referring to the value of the property passing, and the fact that such property is government bonds does not vitiate the Act, because such bonds are simply appraised in determining the value of the inheritance 1 6 THE LAW OF TAXABLE TRANSFERS. or transfer, and are not themselves taxed. {Plummer V. Coler, 178 U. S. 115; 205 S. Ct. 829.) The amount of the tax is measured by the sum or property received by the legatee. {Matter of Hoffman, 143 N. Y. 327; Matter of Westurn, 152N. Y. 93.) Five hundred dollars not exempt. The statute does not mean that taxable estates are exempt from taxation to the extent of $500, but that only such estates as equal or exceed $500 are taxable. {Matter of Sherwell, 125 N. Y. 376.) A legacy of $500 is of a fair market value on its face and subject to taxation. {Matter of Bird, 32 St. Rep. 899 ; Matter of Kavanagh, 6 Supp. 669.) But a bequest of $500, pay- able one year from the granting of letters, is not tax- able, because the appraisal is made of the value of the bequest at the time of the death. {Matter of Peck, 9 Supp. 465 ) Where an equity in devised lands subject to a mortgage is less than $500, it is exempt from taxation. {Matter of Kene, ZM.isc. 102.) Property taxable. A foreign estate is liable to the legacy tax. {Matter of Craig, 15 Supp. 548.) So are life insurance policies held by the testator at the time of his death and pay- able to himself, his executors, administrators, assigns, and legal representatives. {Matter of Knoedler, 140 N. Y. 377, aff'g s. c. 68 Hun, 150.) Funds on deposit to the credit of a partition suit to which the deceased was a party, are not to be considered real property and therefore exempt. {Matter of Stiger, 7 Misc. 268.) A bequest in trust for masses, if not contained in funeral expense clause, is taxable. {Matter of Black, TAXABLE TRANSFERS. 1 7 3 Supp. 452,) Legacies to the United States are tax- able under this Act, the United States being a foreign corporation as far as the State of New York is con- cerned. {Matter of Merriam, 141 N. Y. 479, aff'g 73 Hun, 587; Matter of Cullom, 145 N. Y. 593, aff'g j6 Hun, 610, 5 Misc. 173.) Stocks of foreign corpora- tions owned by a resident of the state are taxable on his death, under this Act. {Matter of Merriam, 141 N. Y. 479, overruling in effect Matter of Thomas, 3 Misc. 388.) A devise to a foreign corporation, enabled by chapter 557 of 1893, to take by devise and hold property in this state within existing statutory limi- tations, is taxable under the will of a decedent who died in January, 1894. {Matter of Wolfe, 23 Misc. 439.) The proceeds of a seat in the New York Stock Exchange are taxable. {Matter of Curtis, 31 Misc. 83.) The distributive share of a child in the real estate of her father, directed by his will to be converted into money, but not converted at the time of her death, is personalty as to her, and the succession thereto of her legatee is subject to the tax. {Matter of Mills, 32 Misc. 493.) Interest of decedent in co-partnership of which he was a member. The individual debts of a deceased member of co- partnership doing business in New York and in another state, and having personalty in both states, cannot be deducted from the taxable value of the New York assets alone; those assets are only subject to be reduced by such proportion of his individual debts as they bear to his whole personal estate. The share of a deceased co-partner in partnership assets, part of 2 1 8 THE LAW OF TAXABLE TRANSFERS. which are in this state and part in another state, is- liable to the transfer tax to the extent of his interest, in the assets habitually kept in this state ; and the debts owing to New York creditors cannot be deducted from the New York assets in determining^^ the value of the taxable estate. The entire firm assets must be valued and any firm obligations ascer- tained ; and the net assets in this state will be ascer- tained by deducting from their gross value such frac- tion of the entire obligations as the New York assets- bear to the total assets. In computing assets, part- nership real property must be omitted, for the reason that subject to the rights of creditors and surviving^ partners, it is real estate and not taxable if located here ; and if located elsewhere, it must be applied iiL payment of debts only after personalty is exhausted. Individual property of the decedent is not to be con- sidered for the same reason. {Matter of King, 3a Misc. 575.) An agreement between co-partners "that all the real and personal property, estate and effects hereto- fore held, or now or hereafter held in the joint name or individual name of either of them, are held and owned by the (co-partners) jointly, where the same has been, or is, in their joint names or name, or in the individual name of either of them," does not con- stitute a strict joint-tenancy in the property, and the interest descending to the children of a deceased co-partner therein is taxable. {Matter of Wormser, 5 1 App. Div. 441.) Interest under a trust deed. Where a deed of trust provided that the net income was to go to the father (the donor of the trust) or his TAXABLE TRANSFERS. I9 order during his life, ^nd after his death to one of the beneficiaries during the latter's life, and afterward to those who might be designated in the will of such beneficiary, or to his children, and is subsequently modified by written instrument directing that the income arising from the trust fund transferred to the trustee be payable to the father until that authority should be revoked by him in writing, does not vest the beneficiary named therein with any right of prop- erty until the death of the grantor, and the property so conveyed comes within the provisions of the Trans- fer Tax Law. (Matter of Masury, 28 App. Div. 580.) Transfer tax paid in foreign states. The transfer of stock in New York corporations owned by a resident of Pennsylvania at her death in October, 1895, is taxable without deduction for the amount of a legacy tax paid in Pennsylvania upon the entire estate. That the legacy has been or will be taxed in a foreign state cannot be considered by our courts. {Matter of Kennedy, 20 Misc. 531.) Property not taxable. Property taxable under the inheritance tax laws of other states is none the less taxable under the laws of this state. {Matter of Burr, 16 Misc. 89.) But the succession under the laws of a foreign state to per- sonal property within this state, belonging to non- resident decedents, cannot be taxed here. {Matter of Embury, 19 App. Div. 214.) Interests in estates which vested prior to the pas- sage of the Act, not subject to be divested, are not taxable. {Matter of Travis, 19 Misc. 393.) Nor does 20 THE LAW OF TAXABLE TRANSFERS. the Act apply to legacies not payable until after its passage where the testator died before. (Matter of Coggswell, 4 Dem. 248.) Proceeds from the gratuity fund of the New York Produce Exchange, payable to beneficiaries by virtue of the by-laws of that exchange and not by virtue of the will of the decedent, or of any administration of his estate, are not taxable. (Matter of Fay, 25 Misc. 468.) A legacy to a person since deceased, impressed with a secret trust under which her brother took the bene- ficial interest, cannot be taxed against the estate of the legatee. {Matter of Edson, 24 Misc. 356.) Prop- erty bequeathed to a daughter by a mother, the lega- tee dying before the mother's estate has been admin- istered, the right of the legatee of the daughter to receive the legacy after administration is not such a property right as requires such legatee, before she has received the legacy, to pay the transfer tax thereon. {Matter of Chabot, i^K-^^.Ww. lifi.) Stocks pledged to brokers as collateral for a loan, sold by them subsequent to the death of the pledgor for an amount insufficient to repay the loan, is not liable to be assessed for a transfer tax. {Matter of Havemeyer, 32 Misc. 416.) Although a clear equitable conversion is established by the testator's will, the tax cannot be assessed upon the succession to the equity of redemp- tion in the real estate. {Matter of Sutton, 15 Misc. 659; but see Matter of Wheeler, 51 St. Rep. 513.) Real property without the state, devised by the will of a resident, is not taxable. {Matter of Lorrilard, 6 Dem. 268 ; Matter of Szvift, 137 N. Y. 77.) Where the personal estate of the deceased consisted exclusively of a distributive share in the estate of a deceased sister TAXABLE TRANSFERS. 21 who resided at the time of her death without the state, and no part of said estate had come into the possession of the testatrix prior to her death, such portion of her estate was not liable to taxation. {Matter of Thomas, 3 Misc. 388.) Limitations. The tax being levied upon the succession to the property, and not upon the property itself, neither the two nor the six year statute of limitation is a defense to a proceeding to collect it. {Matter ofCrerar, 31 Misc. 481.) On appeal the order in this proceeding was reversed without considering statutes of limita- tion. {Matter of Crerar, 56 App. Div. 479.) PROPERTY OF NON-RESIDENT DECEDENTS. Bonds and Stocks actually within the state of New York, of corporations organized under the laws of the state, owned by a non-resident, are, on his death, subject to the transfer tax, although ancillary letters have not been taken out in this state. {Matter of Pull- man, 46 App. Div. 574; Matter of Whiting, 150 N. Y. 27, 2 App. Div. 590.) And although the estate has been fully administered in the state of decedent's domicile and the collateral inheritance tax imposed by the laws of that state has been paid. {Matter of Fitch, 39 App. Div. 609.) But such stocks and bonds pledged as security for debts are not taxable, as the title to them is in the pledgee, whose security should not be impaired. {Matter of Pullman, 46 App. Div. 574.) Such bonds owned by, and in possession of, a non-resident decedent at his domicile out of this state at the time of his death, and which then passed to non-residents, are not subject to taxation. {Matter of 22 THE LAW OF TAXABLE TRANSFERS. Branson, 150 N. Y. i.) But shares of stock in domestic corporations, held by and represented by certificates in the possession of a non-resident decedent at the time of his death at his domicile out of this state, and which then passed to non-residents, are subject to taxation. {Matter of Branson, 150 N. Y. i.) So, the interest of a non-resident decedent in a firm doing business in the state of New York is taxable upon a second appraisal. (Matter of Crerar, 31 Misc. 481 ; s. c. reversed on another point, 56 App. Div. 479.) Bonds of Foreign Corporations, both registered and coupon, physically present within the State and owned by a non-resident decedent, are taxable. {Matter of Whiting, 150 N. Y. 27; Matter of Morgan, 150 N. Y. 35.) Debts and legacies due non-resident decedents. The collateral inheritance tax was intended to cover only the tangible property kept within this State by a non-resident decedent. Debts and legacies due the decedent and which have never been reduced to pos- session are not taxable {Matter of Phipps, 143 N. Y. 641; afif'g TJ Hun, 325); nor is the balance in dece- dent's favor on the books of a banker in New York City, who is also non-resident, no voucher to the decedent appearing therefor and she never having drawn checks upon it. {Matter of Bent ley, 31 Misc. 656.) Not taxable before 1887. Before the Act of 1887, property within this State passing by will or the laws of intestacy from a non- resident decedent was not taxable. {Matter of Enstan, TAXABLE TRANSFERS. 23 113 N. Y. 174; Matter of Tulane, 51 Hun, 213; Matter ■of Hall, 29 St. Rep. 367.) Real or personal property within this State, of a non-resident decedent, is taxable since the Act of 1887. {Matter of Romaine, 127 N. Y. 80; aff'g 58 Hun, 109; Matter of Vinot, 28 St. Rep. 610.) So, a bank account and bond secured by mortgage on property in this State of a non-resident decedent in this State are taxable. {Matter of Clark, 9 Supp. 444; Matter of Burr, 16 Misc. 89.) But a legacy to a brother under the will of a non-resident, chargeable upon real estate within the state, has been held to be not taxable, Taecause it is an interest in land. Matter of Chese- brough, 34 Misc. 365 ; Matter of Sutton, 3 App. Div. 208 ; Matter of Offerman, 25 App. Div. 94.) Money in the hands of a resident legal adviser of a non-resident is taxable ; {Matter of Burr, 16 Misc. 89) ; so are his deposits in savings banks of this State, (Id.); so is money belonging to a trust estate deposited in this State in a bank or trust corporation by a non-resi- dent decedent as trustee. {Matter of Houdayer, 150 N. Y. 37; rev'g 3 App. Div. 474.) Where the non-resident decedent's estate lies partly in this State and partly elsewhere, it is within the powers of the executors to pay specific legacies from the property without the State and avoid the tax, the remainder passing to persons in whose hands it is exempt. {Matter of James, 144 N. Y. 6 ; aff'g "jj Hun, 211; rev'g 6 Misc. 206.) But shares of stock of foreign corporations, although within the State at the time of the non-resident testator's death, are not taxable. (Id.) 24 THE LAW OF TAXABLE TRANSFERS. Life Insurance Policies issued by domestic com- panies upon the life of a non-resident, and not within the jurisdiction of the State at the time of his death, are not taxable. {Matter of Abbett, 29 Misc. 567.) Discharge of foreign executors cannot prevent ap- praisal. Although the executors of a non-resident decedent have already been discharged in the State of his domicile, the surrogate has jurisdiction to entertain a proceeding brought by the State Comptroller to tax the assets of the decedent located in the State of New York which have never been taxed. {Matter of Hub- bard, 21 Misc. 566.) TRANSFER IN CONTEMPLATION OF DEATH. Six instruments were executed and delivered to a trust company at different times between August 19th, 1889, and February 3d, 1892, and provided that decedent could at any time prior to his death with- draw from the possession of the trustee any or all of the property transferred and substitute other property in its place, and that he could alter, amend or termi- nate the trust, in whole or in part, and in case of a termination all the property should be returned to him. Some of them provided to the effect that the income from the property, or the greater portion of it, should, during decedent's life, if he so desired, be paid by the trustee to him, or to such other persons as he might direct. Held, that the decedent had not in fact during his life disposed of the property at all, and upon his death it was subject to the transfer tax. {Matter of Bostwick, 160 N. Y. 489 ; aff 'g s. c. 38 App. Div. 223.) TAXABLE TRANSFERS. 25 Deeds of trust not contingent upon the death of the donor. Deeds of trust executed by one in good faith with the sole purpose of providing for the beneficiaries therein, in all of which the net income of the trust was to go immediately to the beneficiaries and the principal was to be paid over to certain parties desig- nated therein on a date certain, do not transfer prop- erty which can properly be included in any appraisal of the estate of the donor for the purpose of taxation under this Act, although each deed reserved the right to the donor ' ' to revoke and annul the same during my lifetime." Such deeds are not "made in contem- plation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death. ' ' {Matter of Masury, 28 App. Div. 580.) Gifts inter vivos. A transfer by decedent, a little less than two months prior to his death, to each of his five children of cer- tain stocks and securities aggregating $25,000 in value, contemplated for about a year, are not necessarily transfers in contemplation of death, and therefore taxable. {Matter of Crary, 7,1 Misc. 72.) But convey- ances of real property of great value, executed and delivered to nieces as gifts by a testatrix nearly eighty years of age, having consumption from which she knew she could not recover and from which she died eight days after making the deed, must be regarded as gifts inter vivos, made in contemplation of the death and a taxable transfer. The testatrix had, by her will made a few months previously, con- 26 THE LAW OF TAXABLE TRANSFERS. stituted the donees residuary legatees of practically the same property. {Matter of Birdsall, 22 Misc. 180.) Where the testimony of a donee is contradictory, the appraiser may not adopt that version of her story •which is most favorable to the state; and may not thereupon determine if it appear that the decedent, leaving no personal property, gave her $100,000 in stocks to care for him as long as he lived and supply him with money whenever he needed it, that the transfer to her must be deemed to have been made in contemplation of the death of the donor, and therefore taxable. The right to impose the tax must rest upon evidence sufficient in probative force to bring it within the statute, and must establish a case from which the law clearly authorizes its imposition. {Matter of Thome, 44 App. Div. 8; rev'g s. c. 27 Misc. 624.) Stock transferred by a father to his daughters without consideration, upon condition that he should receive the dividends and have the right to vote the stock until his death, must be deemed to be transferred to take effect in possession or enjoyment at the death of the donor. {Matter of Brandreth, 28 Misc. 468. This decision was reversed in March, 1901 ; see 58 App. Div. 57S-) Where property is delivered by the owner to a trustee under an instrument purporting to assign it to the trustee and his successors in trust, to collect the income and apply the same to the grantor's use during life, and after the grantor's death to distribute the prop- erty among designated remaindermen, the transfer to the remaindermen must be deemed to have been "intended to take effect in possession or enjoyment at or after the death " of the grantor or donor, and therefore taxable. {Matter of Greene, 153 N. Y. 223; TAXABLE TRANSFERS. 27 reversing 7 App. Div. 339.) But gifts inter vivos, not made in contemplation of death by the donor and not shown to have been made in contemplation of death, or with the purpose of evading the provisions of the Taxable Transfer Act, are not taxable although the gifts were made less than two years before the donor's death. {Matter of Spaulding, 49 App. Div. 541 ; aflf'g s. c. 22 Misc. 420.) Such gifts to be taxable must be made and received with the intent and for the purpose of evading its provisions. (Id.) So, where a man eighty- five years old, never afflicted with acute disease, having three children and feeling his large personal property a burden, gave the bulk thereof outright to his child- ren and thereafter never exercised or attempted to exercise any control over the property so given, and the children collected the incomes and interests from it from time to time as it became due, it was held that although the donor died within a couple of years after the gifts, the proof did not disclose that they were made in contemplation of the death of the grantor. (Id.) Trust deed disclosing gift to take effect on grantor's death. The trust deed did not constitute an absolute gift of the grantor's property during his life, so as to exempt the transfer from taxation under the Act as a gift intended to take effect at or after the grantor's death, where, after the delivery of the deed to the trustee, the grantor not only was entitled at any time to revest himself with the ownership of the property, but did continue to be able to enjoy it or manage and dispose of it as effectually as he might previously 28 THE LAW OF TAXABLE TRANSFERS. have done by the reservation to himself of powers to alter or amend the trust by notice to the trustee to withdraw or exchange any securities and to control the acts of the trustee in selling or disposing of the securities, or with respect to investments. {Matter of Bostwick, 38 App. Div. 223 ; aflE'd 160 N. Y. 489.) Agreement for support. One accepting the transfer of property, agreeing to care for the donor during his lifetime and to supply him with money as he needed it, does not, in the absence of affirmative proof that the donor reserved to himself the beneficial use and enjoyment of the property during his life, become liable to pay a trans- fer tax upon the property at the transferrer's death, upon the ground that it was not intended to take effect in possession or enjoyment until the death of the transferrer. (Matter of Thome, 44 App. Div. 8.) Tax not dependent on time of enjoyment of gift. A gift intended to take effect in possession or enjoy- ment at the death of the donor is taxable, although the donee survived the donor for only a few days and before administration had upon the estate of the donor. {Matter of Borup, 28 Misc. 474.) Beneficiaries residence immaterial. The residence of the beneficiaries of the transfer is immaterial where the property was within this state and the transfer was by a resident. {Matter of Green, 153 N. Y. 223.) taxable transfers. 29 Subdivision 4. Estates in Expectancy, etc. Not retroactive. The words of subdivision 4, Section 220, are not intended to be retroactive in effect ; they apply to a case -where a transfer was executed before the passage of the Act, and a person or corporation should there- after become beneficially entitled to the property. {Matter of Forsyth, 10 Misc. 477.) The words apply solely to gifts causa mortis and not to transfers by will or intestacy. Where, therefore, a will creating a remainder was proven before the passage of the original Act, such remainder, although not actually vested in possession until after the passage of such Act was transferred at the time of the testator's death and is not taxable. {Matter of Seaman, 147 N. Y. 69, reversing s. c. 87 Hun, 619; Tallmadge v. Seaman, 9 Misc. 303; Matter of Harbeck, 161 N. Y. 211, reversing s. c. 43 App. Div 188.) So, bequests in the exercise of a power by will executed after the enactment of the Transfer Tax, the power being created by a will which took effect before its enactment, are not subject to the transfer tax. {Matter of Harbeck, 161 N. Y. 211.) Transfer under will giving power of disposition to life tenant. Non-exercise of power. Where a will gives property to one for life with power of disposition during life and by will, and provides that the residue remaining at life tenant's death undisposed of shall pass to certain persons named, and the life tenant by will directs his execu- tors to distribute the property "according to the pro- visions of the will ' ' of the first testator, by delivering the same to the executors named in that will for that 30 THE LAW OF TAXABLE TRANSFERS. purpose, such direction is not an exercise of the power of disposition, but the property is deemed to have passed directly to the remaindermen under the will of the first testator ; and such transfer is not taxable under the Transfer Tax Act of 1892 (Chap. 399), where the death of the first testator occurred prior to legis- lation taxing transfers by will. {Matter of Langdon^ 153 N. Y. 6, aff'g s. c. II App. Div. 220.) Remainders. Rights of residuary legatees sure to come into the immediate possession of the estate if they survive the trust period and are living at the termination of the previous estate created for their benefit of which they can dispose at will, are taxable. {Matter of Sherman, 30 Misc. 547.) So, where one bequeathed property to his mother for life with remainder to his sister, the sister is entitled to the property immediately upon the death of the mother, and a legatee of the sister takes such remainder subject to the transfer tax. {Matter of Chabot, 44 App. Div. 340.) A vested remain- der limited on a life estate is taxable. {Matter of Vinot, 7 Supp. 517.) But the estate of a tenant for life is not liable to pay the transfer tax on remainders created by the will of which the life tenant is the executrix. {Matter of McMahon, 28 Misc. 697.) When property is conveyed to a trust company to hold and manage during the life of the grantor, to pay the income thereof to him and to transfer the same after his death to the persons named in his will, or to his next of kin, a naked revocable trust is created and the property is to be taxed as passing by the wilL {Matter of Ogsbury, 7 App. Div. 71.) TAXABLE TRANSFERS. 3 1 Where property was deeded in 1882 to trustees in trust to pay income to decedent for life, and on her death to convert it into money and distribute it to nephews and nieces, and where the death of decedent occurred after the Act of 1885 went into effect, it was held that the legacies to the nephews and nieces were exempt. {Matter of Hendricks, 18 St. Rep. 989.) Remainders transferred to the donees in possession or enjoyment by an instrument intended to take effect for that purpose at or after the death of the donor, are subject to the tax, whether the transfer is by grant or by gift and whether the donees were resi- dents of this state or not. {Matter of Green, 153 N. Y. 223, reversing s. c. 7 App. Div. 339.) By a trust deed acknowledged October 20th, 1892, by Eugene C. Cruger and by his wife October 25th, 1892, the said Eugene assigned and transferred to trustees certain personal property in trust, (i) to keep the principal invested as directed and collect the income, and after deducting taxes and expenses dur- ing his life to pay to his daughter Angele, her exe- cutors and administrators, the sum of twelve hundred dollars annually, in equal monthly payments, and any balance of said income to the creator of the trust ; (2) at his death to pay over the trust fund and any accumulated income to Angele Cruger, if living, or if she be dead, then to her issue, or in default of issue, then to such person as Angele Cruger should by will appoint, or in default of such appointment, then to such person as would be entitled to the same under the laws of the state of New York had Angele Cruger died intestate and in possession of the prop- erty. Angele died September 2, 1896, intestate, un- 32 THE LAW OF TAXABLE TRANSFERS. married, without issue and without having exercised her power of appointment under the trust deed. The creator of the trust died April 4, 1898, and the corpus of the trust estate thereupon passed to the next of kin of Angele Cruger, with the exception of her mother. Held, that the next of kin took the contingent remain- der dependent upon the death of Angele Cruger within the lifetime of her father, unmarried and without issue and without having exercised the power of appointment given her by the trust deed. These events happening, the contingent remainder became a vested remainder in equal shares, and the estate took effect in possession or enjoyment at or after the death of the donor and is liable to the tax. {Matter of Cruger, 54 App. Div. 405.) Contingent and expectant estates. The statute does not contemplate those cases only where the interests created are capable of valuation at the death of the testator. Contingent interests may be taxed when they vest in possession and their value can be ascertained. {Matter of Stewart, 1 3 1 N. Y. 274, reversing s. c. 61 Hun, 554, aff'g s. c. 10 Supp. 15.) When the question as to whether any property at all shall pass as a remainder and, if so, how much, depends upon the will of the first taker, there is no basis upon which the value of the devise can be appraised, and no foundation for the imposition of any tax. {Matter of Cager, in N. Y. 343, aff'g s. c. 46 Hun, 657.) Contingent and expectant estates can be taxed only when they become fixed and actual. {Matter of Hoff- TAXABLE TRANSFERS. 33 man, 143 N. Y. 327, aff'g, on this point, s. c. 76 Hun, 399, and reversing, on this point, s. c. 5 Misc 439; Matter of Wescott, 11 Misc. 589; Matter of Roosevelt, 143 N. Y. 120, aff'g s. c. 76 Hun. 257; Matter of Le Fever, 5 Dem. 184; Matter of Leavitt, 4 Supp. 179; Matter of Clark, 5 Supp. 199.) Where the remainder of an estate cannot be fixed because of the power given to the life tenant to use the principal, a tax on the remainder cannot be assessed until the death of the life tenant. (Matter of Hopkins, 6 Dem. i.) When property is devised in trust for persons exempt from taxation under the Act, and it cannot be determined until the end of the trusts whether the remainders will pass actually and bene- ficially to persons in whose hands it will be taxable or to others in whose possession it will be exempt, no appraisement of the contingent remainders should be made until such interests become vested in possession on the termination of the trusts. {Matter of Curtis, 142 N. Y. 219; s. c. 73 Hun, 185.) Subdivision 5. Exercise of Power of Appoint- ment. Amendment to subdivision constitutional. The amendment of 1897, providing that whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this Act, such appointment when made shall be deemed a transfer taxable under the provisions of this Act, in the same manner as if the property to which such appointment relates belonged absolutely to the donee 3 34 THE LAW OF TAXABLE TRANSFERS. of the power and had been bequeathed or devised by such donee by will, is constitutional. And upon a devise of one-fifth of a residuary estate to a daughter for life, and upon her death to be divided among her issue her surviving, with a provision which gave her power to appoint, by will, such share to and among the testator's descendants living at her death, in such proportion and upon such lawful trusts and condi- tions as she should think proper, an appointment by her of the property in equal portions among her daughters her surviving is taxable. {Matter of Potter, 51 App. Div. 212; and see Matter of Vanderbilt, 50 App. Div. 246; followed Matter of Vanderbilt, 58 App. Div. 619; afif'd 166 N. Y. 640.) Object of amendment. The direct object of the amendment of 1897 was to make the time at which the appointee would become entitled in possession the time at which the tax upon the right of succession should be imposed. The act constituting the transfer is declared to be the exercise of the power of appointment. And the authority of the state to impose a tax on the right of succession continued until the time at which the extent of that right was finally fixed by the exercise of the power of appointment. (Matter of Vanderbilt, 50 App. Div. 246; followed Matter of Vanderbilt, 58 App. Div. 619; aff 'd 166 N. Y. 640.) But where the right of succession to the property in question passes to the beneficiaries under and by virtue of a will that went into effect long before the enactment of a Transfer Tax Law, the prop- erty is not subject to the tax. So, bequests in the exer- cise of a power by will executed after the enactment of TAXABLE TRANSFERS. 35 the Transfer Tax Act of 1892, but created by a will ■which took effect before the enactment of any Tax- able Transfer Law, are not subject to the transfer tax, since the source of title is the will creating the power into which the names of the appointees must be read, and their right of succession vests, not at the time of the execution of the power, but at the time the will creating it went into effect. {Matter of Harbeck, 161 N. Y. 211, reversing s. c. 43 App. Div. 188.) Where property is bequeathed to one for life with remainder over, subject to a power of appointment conferred on life tenant, and the power is exercised in favor of the remainderman by will admitted to probate on the same day on which the remainderman dies, the property passes under the latter's will and is subject to the transfer tax. (Matter of Chabot, 44 App. Div. 340.) When tax not ascertainable. A will of more than ten thousand dollars personalty provided as follows : Fourth. I give, devise and bequeath the remainder of my property, both real and personal, to my sur- viving sisters, to share and share alike, for their sole and separate use so long as both shall live, and the last surviving one to have the use of the whole amount as long as she shall live. Fifth. After the decease of both my sisters, the income from all of my property, both real and per- sonal, shall be divided between the surviving children of my sister Mary Ann Gay, to share and share alike, so long as they shall live. Sixth. Upon the decease of either or all of the above- 36 THE LAW OF TAXABLE TRANSFERS. named children of my sister Mary Ann Gay, the principal of the share used for his or her benefit shall go direct to the children of Amy Gay Geer and the children of Willard F. Gay, shall he have issue, to share and share alike, for their sole and separate use forever. Held, that the two sisters each took an estate in severalty as tenants in common with cross-remainders, and that upon the death of the last survivor the fifth clause became operative as to one-half of the remain- der, in which there had been but one life use, and passed to the surviving children of Mary Ann Gay for life ; that the life estates of the two sisters are taxable, and the amount of the tax is now ascertain- able, but that the other interests under the clauses of the will could not be presently determined, and as to them the matter must await future action. {Matter of Eldridge, 29 Misc. 734.) Value : How and When Ascertained. Basis of value. Since the passage of the Act of 1892, the law of tax- able transfers must be so construed that the liability to taxation shall depend upon the aggregate value of all the property transferred to taxable persons, and not on the separate value of each several transfer. This rule does not overthrow the general theory of the nature of the tax already determined, that the tax is imposed upon the transfer of property to individual legatees ; but it applies to provisions of the Act where, by the use of the definitions, the intent of the legisla- ture to so enact may be seen. {Matter of Hoffman, 143 TAXABLE TRANSFERS. 37 N. Y. 327, reversing, on this point, s. c. 76 Hun, 399, aff 'g s. c. 5 Misc. 439.) The manifest purpose of the Act was to tax the aggregate of the property trans- ferred by the deceased, and not the specific shares passing to each beneficiary; each share, therefore, less than $500, passing to a collateral relative is tax- able if the whole amount passing to collateral relatives exceeds $500. {Matter of Hall, 88 Hun, 68; Matter of Taylor, 6 Misc. 277.) But where the total amount of shares of nieces and nephews under a will is less than $500 they are not taxable. {Matter of Weed, 10 Misc. 628.) And where the distributive share passing to a sister is less than $10,000 it is not to be added to the distributive shares passing to nephews in ascertaining whether such last named distributive shares are sub- ject to taxation. {Matter of Bliss, 6 App. Div. 192.) Previous to the Act of 1892 at least, the word "estate " meant the property passing to the individual bene- ficiary, and not the whole estate of the decedent. {Matter of Sterling, 9 Misc. 224; Matter of Jones, 10 St. Rep. 163; Matter of Smith, 5 Dem. 90; Matter of Hop- kins, 6 Dem. i; Matter of McCready, 10 St. Rep. 696; McVean v. Sheldon, 48 Hun, 163; Matter of Cager, iii N..Y. 343; Matter of Howe, 112 N. Y. 100.) Value as of time of decedent's death. The true test of value by which the tax is to be measured is the value of the estate at the time of the transfer of the title, and not the value at the time of the transfer of the possession. {Matter of Davis, 149 N. Y. 539; Matter of Sloane, 154 N. Y. 109.) The increase or interest obtainable after the transfer of title is not generally taxable. {Matter of Vassar, 127 38 THE LAW OF TAXABLE TRANSFERS. N. Y. I.) It is the better rule to assess the tax on the property transferred as the testator leaves it, without regard to the operation or effect of equitable rules that apply only to the administration of the estate. {Matter of Sutton, 3 App. Div. 208.) It is not the legacy that is taxable, but the property of which the testator died seized or possessed applicable to the payment of the legacy. {Matter of Weed, 10 Misc. 628.) Time of ascertaining value. If the person to whom the property passes cannot be known until the death of the life tenant, the tax cannot be imposed until after that event. (Matter of Davis, 149 N. Y. 539.) Where a widow is given the use of the whole estate for life, but in case of her re-marriage then the use of one-half only, it is impos- sible to ascertain the value of her estate for the pur- pose of taxation before her death or re-marriage. {Matter of Millward, 6 Misc. 425.) If an interest subject to the transfer tax is of such a nature that its value cannot be ascertained imme- diately after it is transferred, it is to be appraised at its fair and clear market value at the date of the transfer whenever such value can be ascertained. {Matter of Sloane, 154 N. Y. 109.) The value of a life estate subject to be terminated at the volition of the life tenant cannot be ascertained until it is terminated. {Matter of Sloane, 154 N. Y. 109.) Debts, etc., to be deducted in ascertaining market value. In estimating the amount taxable under the Trans- fer Tax Act, the debts of the deceased, the expenses TAXABLE TRANSFERS. 39 of administration and the commissions of the execu- tors are to be deducted. {Matter af Westurn, 152 N. Y. 93.) But doubtful deductions should be rejected or decision upon them should be reserved until the claim has been definitely established or rejected. {Matter vf Rice, 29 Misc. 404, aff'd s. c. 56 App. Div. 253.) The sum expended by successful contestants in liti- gation over the will, although the court charges costs and allowances in their favor upon the estate, cannot be deducted. {Matter of Westurn, 152 N. Y. 93.) Taxes levied subsequent to the death of a decedent under an assessment made against him prior to his decease and paid by the executor from the estate should be deducted. {Matter of Brundage, 31 App. Div. 348.) If an action be pending against the firm of which decedent was a member, his proportionate share of the probable liability may properly be with- held from the transfer tax appraisal and taxation; but the order fixing the tax should recite that until the litigation has been decided the determination as to the matter is suspended. {Matter of Wormser, 28 Misc. 608.) The commissions in appraising an estate for the transfer tax need not be ascertained with certainty and exactness. {Matter of Gould, 48 N. Y. Supp. (82 St. Rep.) 872.) Allowance of decedent's debts. Where no proof is made, except by an affidavit of an attorney at law, that a claimed creditor was advised that by a true construction of an agreement he was entitled to claim as survivor, and that the children of 40 THE LAW OF TAXABLE TRANSFERS. the decedent who took his estate were also so advised, there is no proper evidence of the existence of a claim, and nothing upon which a deduction for it could be allowed. {Matter of Wormser, 51 App. Div. 441; modifying 28 Misc. 608.) In estimating stocks and bonds owned by a non- resident decedent but actually within the state of New York, general indebtedness of the decedent to credi- tors in New York should not be offset against such assets, particularly when such creditors have in their hands the legal title and the right to resort for the payment of their debts to securities belonging to the decedent which are not taxable under the laws of this state. {Matter of Pullman, 46 App. Div. 574.) Individual debts of the testator contracted for the- purchase of real property, not secured by any specific lien on that or any other property, are payable from personalty, and in determining the tax must be deducted with his other debts from the amount of his assets. {Matter of King, 30 Misc. 575.) Apportionment of debts, etc., between exempt and non-exempt personalty. Where the personal estate of a decedent consists in part of exempt government bonds, the debts, expenses of administration and commissions should be appor- tioned ratably between the bonds and the other tax- able personal property for the purpose of estimating the taxable value of the succession. {Matter of Purdy, 24 Misc. 301.) Mortgage debt not to be deducted. Mortgage liens upon real estate of testator are not to be deducted from the total value of his personal TAXABLE TRANSFERS, 4I estate in determining the amount of transfer tax. {Matter of Offerman, 25 App. Div. 94.) Mortgages directed by will to be paid from person- alty are not to be deducted from the value of the per- sonal property in order to determine the value of the succession to take, although the real property law expressly permits the testator to direct that mortgages upon his realty shall be paid from his personalty. (Matter af Berry, 23 Misc. 230.) Mortgages are not to be deducted, even though the testator directs his exe- cutors to free real estate given to and thereafter accepted by his wife in lieu of dower, from every lien existing thereon at the time of his death, if the testa- tor purchased the premises with the mortgages then existing thereon. {Matter of DeGraff, 24 Misc. 148.) And the payment of mortgages on real property from the personal estate, where both the real and personal property are in the same hands, does not reduce the personal property for the purposes of taxation under this Act. {Matter of Livingston, i App. Div. $68; Matter of Sutton, 3 App. Div. 308.) Deduction of foreign executor's commissions. In the absence of proof as to the rate of executor's commissions in a foreign state, a deduction based upon the relative amount of property in this state at the rate at which commissions are allowed to execu- tors here should be made. {Matter of Kennedy, 20 Misc. 531.) Compromise of pretended claim not deductible. In a declaration of trust two brothers were consti- tuted joint tenants of all their joint and several prop- 42 THE LAW OF TAXABLE TRANSFERS. erty ; upon the death of one intestate, this trust was disregarded and his property distributed according to law; and it was held that an alleged payment, not shown ever to have been made in compromise of the rights and claims of the living brother as survivor, was not deductible in fixing the value for the transfer tax. {Matter of Wormser, 28 Misc. 608.) Deduction of claim in litigation. Where in a suit brought by administrators upon a note and still pending when an appraisal for the trans- fer tax is made, the defense of payment is interposed, the note should be excluded from the valuation and reserved for future appraisement in case the adminis- trators succeed in collecting it. [Matter of Westurn, 152 N. Y. 93.) Notes ; how appraised. If a testator direct his executor to cancel and sur- render certain notes to the makers thereof without payment, for the purpose of determining the transfer tax thereon the notes should be appraised at their fair market value, and not at their face value. (Morgan v. Warner, 45 App. Div. 424.) Value of stocks ; how determined. For the purposes of taxation under this Act, an appraiser may properly determine the value of stocks from reports of ' public sales of such securities made at the New York Stock Exchange in compliance with Chapter 34 of the Laws of 1891 ; and where no sales are made, he must ascertain the value from the best TAXABLE TRANSFERS. 43 information which he can obtain. The Stock Exchange values may be adopted, although it appears that the decedent owned very large blocks of stock, which, if thrown on the market at one time, might have a ten- dency to produce a break in it, and possibly result in the offer of a mere nominal price therefor. (Matter of Gould, 19 App. Div. 352.) Within the meaning of Chapter 34 of 1891, three months is "a reasonable period of time " for a transfer tax appraiser to consider "the range of the market and the average of prices," in order to determine the value of stocks belonging to a decedent's estate. {Matter of Crary, 31 Misc. 72.) In the absence of a market value for a stock not for sale, an appraiser may properly estimate its taxable value upon the basis of the earning capacity of the corporation, its good will, and the value of its secret receipts used in manufactory. {Matter of Brandreth, 28 Misc. 468. This decision was reversed in March, 1901. See 58 App. Div. 575.) United States War Revenue Tax not to be deducted before assessing the state transfer tax. {Matter of Curtis, 31 Misc. 83; Matter of Becker, 26 Misc. 633; Matter of Irish, 28 Misc. 647.) But see Matter of Gihon, (33 Misc. 206), where Surrogate Silk- man holds that in assessing the transfer tax upon the succession to property the commissions of a temporar)' administrator and his expenses (where these are prac- tically the same as if the estate had passed at once to the executors), the legacy tax due the United States and the commissions due the executors as trustees should be deducted. 44 THE LAW OF TAXABLE TRANSFERS. Value of remainder ; how determined. The value of a vested remainder is presently deter- minable and consists of the difference between the value of the entire estate and that of the life estate. (In Re Lange, 55 N. Y. Supp. (89 St. Rep.) 750; Matter of Bogart, 25 Misc. 466; s. c. 55 N. Y. Supp. (89 St. Rep.) 751.) The tax on a transfer under a power to the life tenant in personalty to dispose of the remain- der therein, must be assessed at her death on the value of the whole property passing under it, and not merely on the value of the remainder as at the death of the grantor of the power. (Matter of Tucker, 27 Misc. 617.) EXEMPTIONS. A person claiming exemption from taxation must be able to point specifically to the statute creating that exemption. The exemption will not be inferred or assumed. (Matter of Moore, 90 Hun, 162; People ex rel. Twenty-third St. R. R. Co. v. Comm'rs of Taxes, 95 N. Y. 554). And the same strict rule is applied to religious and charitable corporations. (Church of St. Monica v. Mayor, etc., 119 N. Y. 91.) The exemptions enumerated in Section 4 of the Tax Law are no longer applicable. (Laws of 1900, Chap. 382, Sec. 2 ; see also Sec. 243, Art. 10, post.) The exemptions in Section 4 of the Tax Law are as follows : 4. Exemption from taxation. — The following prop- erty shall be exempt from taxation : 1. Property of the United States. 2. Property of this state other than its wild or forest lands in the forest preserve. EXEMPTIONS. 45 3. Property of a municipal corporation of the state held for a public use, except the portion of such prop- erty not within the corporation. 4. The lands in any Indian reservation owned by the Indian nation, tribe or band occupying them. 5. All property exempt by law from execution, other than an exempt homestead. But real property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned and occupied by the pensioner, or by his wife or widow, is subject to taxation as herein provided. Such property shall be assessed in the sartie manner as other real property in the tax districts. At the meeting of the assessors to hear the complaints con- cerning assessments, a verified application for the exemption of such real property from taxation may be presented to them by or on behalf of the owner thereof, which application must show the facts on which the exemption is claimed, including the amount of pension money used in or toward the purchase of such property. If the assessors are satisfied that the applicant is entitled to the exemption, and that the amount of pension money used in the purchase of such property equals or exceeds the assessed valua- tion thereof, they shall enter the word "exempt" upon the assessment-roll opposite the description of such property. If the amount of such pension money used in the purchase of the property is less than the assessed valuation, they shall enter upon the assess- ment-roll the words "exempt to the extent of , . . dollars" (naming the amount), and thereupon such real property, to the extent of the exemption entered by the assessors, shall be exempt from state, county 46 THE LAW OF TAXABLE TRANSFERS. and general municipal taxation, but shall be taxable for local school purposes, and for the construction and maintenance of streets and highways. If no applica- tion for exemption be granted, the property shall be subject to taxation for all purposes. The entries above required shall be made and continued in each assessment of the property so long as it is exempt from taxation for any purpose. The provisions herein, relating to the assessment and exemption of property purchased with a pension apply and shall be enforced in each municipal corporation authorized to levy taxes. (As amended by Chap. 347 of Laws of 1 897.) 6. Bonds of this state to be hereafter issued by the Comptroller to carry out the provisions of Chapter seventy -nine of the Laws of eighteen hundred and ninety-five, and bonds of a municipal corporation heretofore issued for the purpose of paying up or retiring the bonded indebtedness of such corporation. (As amended by Chap. 80 of the Laws of 1897.) 7. The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, scientific, literary, librarj', patriotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more such purposes, and used exclus- ively for carrying out thereupon one or more of such purposes ; and the personal property of any such cor- poration shall be exempt from taxation. But no such corporation or association shall be entitled to any such exemption if any officer, member or employee thereof shall receive or may be lawfully entitled to receive EXEMPTIONS. 47 any pecuniary profit from the operations thereof except reasonable compensation for services in effect- ing one or more of such purposes, or as proper bene- ficiaries of its strictly charitable purposes ; or if the organization thereof, for any such avowed purposes be a guise or pretense for directly or indirectly mak- ing any other pecuniary profit for such corporation or association, or for any of its members or employes, or if it be not in good faith organized or conducted exclusively for one or more of such purposes. The real property of any such corporation or association entitled to such exemption held by it exclusively for one or more of such purposes and from which no rents, profits or income are derived, shall be so exempt, though not in actual use therefor by reason of the absence of suitable buildings or irj^provements thereon, if the construction of such buildings or improvements is in progress, or is in good faith con- templated by such corporation or association. The real property of any such corporation not so used exclusively for carrying out thereupon one or more of such purposes, but leased or otherwise used for other purposes, shall not be exempt, but if a portion only of any lot or building of any such corporation or association is used exclusively for carrying out there- upon one or more such purposes of any such corpora- tion or association, then such lot or building shall be so exempt only to the extent of the value of the por- tion so used, and the remaining or other portion to the extent of the value of such remaining or other portion shall be subject to taxation ; provided, how- ever, that a lot or building owned, and actually used for hospital purposes, by a free public hospital, 48 THE LAW OF TAXABLE TRANSFERS. depending for maintenance and support upon volun- tary charity shall not be taxed as to a portion thereof leased or otherwise used for the purposes of income, when such income is necessary for, and is actually applied to, the maintenance and support of such hos- pital. Property held by any officer of a religious denomination shall be entitled to the same exemp- tions, subject to the same conditions and exceptions, as property held by a religious corporation. (As amended by Chap. 371 of the Laws of 1897.) 8. Real property of an incorporated association of present or former volunteer firemen actually and exclusively used and occupied by such corporation and not exceeding in value fifteen thousand dollars. 9. All dwelling houses and lots of religious corpora- tions while actually used by the officiating clergyman thereof, but the total amount of such exemption to any one religious corporation shall not exceed two thousand dollars. Such exemption shall be in addi- tion to that provided by subdivision seven of this section. ID. The real property of an agricultural society permanently used by it for exhibition grounds. 11. The real property of a minister of the gospel or priest who is regularly engaged in performing his duties as such, or permanently disabled, by impaired health from the performance of such duties, or over seventy -five years of age, and the personal property of such minister or priest, but the total amount of such exemption on account of both real and personal property shall not exceed fifteen hundred dollars. 12. All vessels registered at any port in this state and owned by an American citizen, or association, or EXEMPTIONS. 49 by any corporation, incorporated under the laws of the state of New York, engaged in ocean commerce between any port in the United States and any for- eign port, are exempted from all taxation in this state, for state and local purposes; and all such corpora- tions, all of whose vessels are employed between for- eign ports and ports in the United States, are exempted from all taxation in this state, for state and local purposes, upon their capital stock, franchises and earnings, until and including December thirty, first, nineteen hundred and twenty -two. 13. A bond, mortgage, note, contract, account or other demand, belonging to any person not a resident of this state, sent to or deposited in this state for col- lection; the products of another state, owned by a non-resident of this state and consigned to his agent in this state for sale on commission for the benefit of the owner; moneys of a non-resident of this state, under the control or in the possession of his agent in this state, when transmitted to such agent for the purpose of investment or otherwise. 14. The deposits in any bank for savings which are due depositors, the accumulations in any domestic life insurance corporation, held for the exclusive benefit of the insured, other than real estate and stocks, now liable for taxation; and the accumula- tions of any incorporated co-operative loan association upon the shares of such association held by any person. 15. Moneys collected in the course of the business of any corporation, association or society doing a life or casualty insurance business or both, upon the co- operative or assessment plan, and which are to be 4 50 THE LAW OF TAXABLE TRANSFERS. used for the payment of assessments, or for death losses or for benefits to disabled members. 1 6. The owner or holder of stock in any incor- porated company liable to taxation on its capital, shall not be taxed as an individual for such stock. 17. The personal property in excess of one hundred thousand dollars of a mutual life insurance corpora- tion incorporated in this state before April tenth, eighteen hundred and forty -nine. (2 Heydecker's Gen'l Laws, 1852-1856,) The Brooklyn Eastern District Hospital being ex- empt from taxation only under subd. 7, sec. 4, of the Tax Law is not exempt from payment of "transfer tax." {Matter of Howell, 34 Misc. 40.) Under section 4 of the Tax Law as it stood in i R. S. 384, a religious corporation was not exempt within the Collateral Inheritance Act of 1887. (Catlin v. Trustees of Trinity College, 113 N. Y. 133 ) But section 22 1 , infra, expressly exempts such corporation. (See post, pp. 55, ^^ seq!) The Act of 1 187 meant to exempt from this tax those societies, corporations and institutions whose property was expressly exempted from taxation by statute; for example, alms-houses, poor-houses, etc. {Church V. People, 6 Dem. 154; Matter of Hunter, 22 Abb. N. C. 24.) The Act of 1890, exempting from taxation the per- sonal estate of certain corporations, was not retroac- tive; where, therefore, prior to 1890, buildings used for public worship were exempt from taxation but there was no general exemption of religious corpora- tions from taxation, a bequest of money with which EXEMPTIONS. SI to build a church must be regarded as personalty and taxable under this act. (Matter of Van Kleeck, 121 N. Y. 701, reversing s. c. 55 Hun, 472.) A bequest to a municipal corporation, made in 1890, is not exempt under Laws of 1887. {Matter of Hamil- ton, 148 N. Y. 310.) Such a bequest, made after the passage of the Act of 1892, would, doubtless, under the decision in Matter of Sherman, 153 N. Y. i, be exempt. The law exempting certain corporations does not refer to foreign corporations, and a legacy to a college outside of this state is not exempt, though by its charter exempted from taxation in its own state. {Matter of McCoskey, 22 Abb. N. C. 20.) The words "now exempted bylaw" refer to exemptions under our laws and not to exemptions of a foreign corpora- tion under the law of its domicile. [Catlin v. Trustees of Trinity College, 113 N. Y. 133; s. c. 49 Hun, 278; Matter of Prime, 136 N. Y. 347.) It is not necessary that a corporation be specifically exempted by its charter. It may belong to a class generally exempted. {Matter of Miller, 5 Dem. 132.) Nor is it necessary that complete immunity from tax- ation exist as to the property of a corporation in order that a bequest to it should be exempted. And Vassar Bros.' Home for Aged Men, John Guy Vassar Orphan Asylum, Vassar Bros.' Hospital and Vassar College are exempt under the Act of 1887. {Matter of Vassar, 127 N. Y. I, reversing s. c. 58 Hun, 378.) The statute exempting real estate of a religious corporation excludes the personal estate from exemp- tion. {Matter of Forrester, 35 St. Rep. 776.) A home for consumptives, whobe inmates are wholly 52 THE LAW OF TAXABLE TRANSFERS. supported by charity, is exempt. {Matter of Her r, 55 Hun, 167.) So is a charitable institution maintaining a hospital supported wholly by voluntary contribu- tions. [Matter of Curtis, 7 Supp. 207 ; Matter of Neale, 10 Supp. 713.) An institution for the blind, whose patients contribute nothing toward its support, is exempt. {Matter of Under hill, 2 Connoly, 262.) A society that conducts a house of industry is exempt, although not specially exempted by its charter. {Matter of Herr, 55 Hun, 167.) The "New York Hospital " was made exempt by a special statute, provided no income was derived from its property; the facts that sales were made occa- sionally of certain insignificant articles of produce of a farm, and that charges were made to patients able to pay, did not make it liable to taxation. {People V. Purdy, 126 N. Y. 679, aff'g s. c. 58 Hun, 386.) But where an association organized for benevo- lent and charitable purposes occupies a portion of a building for the purposes of a public library and rents the larger portion thereof as a theater or hall for public meetings or entertainments, the income thereof being devoted exclusively to the purposes of the library, it is not exempt from taxation upon such real estate to the extent of the portion used for such theater purposes. {People ex rel. Young Men's Associa- tion v.Sayles, 32 App. Div. 197; 53 N. Y. Supp. (87 St. Rep. 6'f) 65, reversing s c. 23 Misc. i ; 50 N. Y. Supp. (84 St. Rep.) 8.) So where a benevolent corporation, while occupying a portion of its building for its cor- porate purposes lets the remainder as a hall for exhibitions and entertainments, applying the reve- nues thus received to the purposes of its organization, EXEMPTIONS. 53 the portion thus rented is not exempt from taxation. {People ex rel. Catholic Union v. Sayles, 32 App. Div. 203 ; S3 N. Y. Supp. (87 St. Rep.) 65.) But the Salvation Army's exemption is not afEected by its use of part of its premises as a salesroom for its goods, incidental to its general work. {People ex rel. Salration Army v. Feitner, 33 Misc. 712.) A medical society, organized under Chapter 94 of 1813, for mental improvement, which maintains a public library open to the public, and furnishes rooms for the meetings of medical or charitable societies, although not required by statute so to do, is not exempt from taxation under the provisions of Chap- ter 498 of 1893. {People ex rel. Medical Society of the County of Kings V. Neff, 34 App. Div. 83; s. c. 53 N. Y. Supp. (87 St. Rep.) ID, TJ.) Institutions exempt from taxation. The New Vork Association for Improving the Con- dition of the Poor. {Matter of Lenox, 9 Supp. 895.) The Lenox Library of New York City, exempted by its charter. {Matter of Lenox , 9 Supp. 895.) So is the Industrial School of the City of Brooklyn, and the Y. M. C. A. of Brooklyn. {Matter of Howell, 34 Misc. 40.) The Brooklyn Home for Consumptives. {Mat- ter of Herr, 55 Hun, 167.) The Hebrew Orphan Asylum of New York City. {Hebrew Orphan Asylum v. Mayor, 11 Hun, 116.) The Association for the Benefit of Colored Orphans in New York City. {Asso- ciation V. Mayor, 104 N. Y. 581.) The Swiss Benevo- lent Society of New York City. {People v. Commis- sioners, 36 Hun, 311.) 54 THE LAW OF TAXABLE TRANSFERS. Institutions not exempt. The Presbyterian Boards of Home and Foreign Missions. {Matter of Board of Foreign Missions, 58 Hun, 116.) The American Board of Commissioners for Foreign Missions. {Matter of Prime, 136 N. Y. 347.) The Bank Clerks' Mutual Benefit Association. {Matter of Jones, 22 Abb. N. C. 50.) The Association for the Prevention of Cruelty to Animals. {Matter of Keith, 5 Supp. 201.) The Christian Home for Tem- perate Men, although exempted from local taxation for other purposes, is not exempted from state taxa- tion and is not exempt, therefore, from the transfer tax. {Matter of Vanderbilt, 10 ^■a.Tp'p.2ig.) It has been held that a charitable institution which requires an admission fee, such as an alms-house, is not exempt. {Matter of Keck, 7 Supp. 331.) Also one which derives income from membership admission fees and other- wise. {Matter of Vanderbilt, 10 Supp. 239.) Exemption of municipal corporations. Testamentary transfers to municipal corporations of property held or to be held for a public use within the corporate limits are exempt from the transfer tax. A bequest to such a corporation of a sum of money for the construction within the corporate limits of a library building to be opened to the public, is exempt. {Matter of Thrall, 157 N. Y. 46, reversing, in this par- ticular, s. c. 30 App. Div. 271.) Exemption for charity. A legacy to a hospital incorporated under Chapter 319 of 1848, is exempted by virtue of subdivision 7, section 4, of Chapter 908 of 1896, from the transfer EXCEPTIONS AND LIMITATIONS. 55 tax. {Matter of Kimberly, 27 App. Div. 470.) The exemptions of this section are no longer allowed. (See/ independently of such peti- tion. {Matter of G Donahue, 44 App. Div. 186, aflf'g s. c. 28 Misc. 607.) Jurisdiction of surrogate in New York county. A surrogate of New York county has no power, since Chapter 658 of 1900, to select an appraiser to assess the transfer tax, and can only direct one of the state comptroller's appraisers to proceed in the matter, although the tax be assessable under the Law of 1892. {Matter of Sondheim, 32 Misc. 296.) Chapter 908 of 1896 only gave the Surrogate's Court jurisdiction over property of non-resident decedents within its territory ; and the Surrogate's Court of the county of New York has no jurisdiction thereunder, or under Chapter 713 of 1887, to impose a tax upon the bank stock and deposits in banks in New York City belonging to the estate of a non-resident decedent, which the executors of that estate had removed from the state of New York in 1887, after the passage of the latter Act, and had distributed. (Matter of Embury, 19 App. Div. 214.) New evidence. The surrogate may take new evidence upon an appeal. {Matter of Bentley, 31 Misc. 656; 66 N. Y. APPOINTMENT OF APPRAISERS. 8 1 Supp. (lOO St. Rep.) 95; Matter of Thompson, 51 App. Div. 623; Matter of Westurn, 152 N. Y. 89, 104.) § 230. Appointment of appraisers, stenographers, et cetera. — The state comptroller shall appoint and may at pleasure remove, not to exceed five persons in the county of New York ; two persons in the county of Kings, and one person in the counties of Albany, Dutchess, Erie, Monroe, Oneida, Onondaga, Orange, Queens, Rensselaer, Richmond, Suffolk and West- chester, to act as appraisers therein. The appraisers so appointed shall receive an annual salary to be fixed by the state comptroller, together with their actual and necessary traveling expenses and witness fees, as hereinafter provided, payable monthly by the state comptroller out of any funds in his hands or custody on account of transfer tax. The salaries of each of the appraisers so appointed shall not exceed the following amounts : In New York county, four thousand dollars; in Kings county, three thousand dollars ; in Erie county, three thousand dollars ; in Westchester county eighteen hundred dollars; in Albany, Queens, Monroe and Onondaga counties one thousand five hundred dollars; in Dutchess, Oneida, Suffolk, Orange and Rensselaer counties one thousand dollars, and in Richmond county five 82 THE LAW OF TAXABLE TRANSFERS. hundred dollars. Each of the said appraisers shall file with the state comptroller his oath of office and his official bond in the penal sum of not less than one thousand nor more than twenty thousand dollars, in the discretion of the state comptroller, conditioned for the faithful performance of his duties as such appraiser, which bond shall be approved by the attor- ney-general and the state comptroller. The state comptroller shall retain out of any funds in his hands on account of said tax the following amounts: i. A sum sufficient to provide the appraisers of New York county with two stenographers, and of Kings county with one stenographer, appointed by the state comp- troller, whose salary shall not exceed fifteen hundred dollars a year each. 2. A sum to be used in defray- ing the expenses for office rent, stationery, postage, process serving, et cetera, necessarily incurred in the appraisal of estates, not exceeding three thousand dollars a year in New York county, and one thou- sand dollars a year in Kings county. In each county in which the office of appraiser is not salaried the county treasurer shall act as appraiser. The surro- gate, either upon his own motion, or upon the appli- cation of any interested party, including the comp- troller of the state of New York, shall by order direct the county treasurer in a county in which the office APPOINTMENT OF APPRAISERS. 83 of appraiser is not salaried, and in any other county the person or one of such persons so designated as appraisers to fix the fair market value of property of persons whose estates shall be subject to the pay- ment of any tax imposed by this article. Whenever a transfer of property is made, upon which there is, or in any contingency there may be, a tax imposed, such property shall be appraised at its clear market value immediately upon such transfer, or as soon thereafter as practicable. The value of every future or limited estate, income, interest or annuity depend- ent upon any life or lives in being, shall be deter- mined by the rule, method and standard of mortality and value employed by the superintendent of insur- ance in ascertaining the value of policies of life insur- ance and annuities for the determination of liabilities of life insurance companies, except that the rate of interest for making such computation shall be five per centum per annum. In estimating the value of any estate or interest in property, to the beneficial enjoyment or possession whereof there are persons or corporations presently entitled thereto, no allow- ance shall be made in respect of any contingent incumbrance thereon, nor in respect of any contin- gency upon the happening of which the estate or prop- erty or some part thereof or interest therein might be 84 THE LAW OF TAXABLE TRANSFERS. abridged, defeated or diminished ; provided, however, that in the event of such incumbrance taking effect as an actual burden upon the interest of the bene- ficiary, or in the event of the abridgement, defeat or diminution of said estate or property or interest therein as aforesaid, a return shall be made to the person properly entitled thereto of a proportionate amount of such tax in respect of the amount or value of the incumbrance when taking effect, or so much as will reduce the same to the amount which would have been assessed in respect of the actual duration or extent of the estate or interest enjoyed. Such return of tax shall be made in the manner provided by section two hundred and twenty-five of this article. Where any property shall, after the passage of this act, be transferred subject to any charge, estate or interest, determinable by the death of any person, or at any period ascertainable only by reference to death, the increase of benefit accruing to any person or cor- poration upon the extinction or determination of such charge, estate or interest shall be deemed a transfer of property taxable under the provisions of this act in the same manner as though the person or corporation beneficially entitled thereto had then acquired such increase or benefit from the person from whom the title to their respective estates or APPOINTMENT OF APPRAISERS. 85 interests is derived. When property is transferred in trust or otherwise, and the rights, interest or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contin- gencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith by the executors or trustees out of the property transferred ; provided, however, that on the happening of any contingency whereby the said property, or any part thereof, is transferred to a person or corporation exempt from taxation under the provisions of this article, or to any person taxable at a rate less than the rate imposed and paid, such person or corporation shall be entitled to a return of so much of the tax imposed and paid as is the difference between the amount paid and the amount which said person or corporation should pay under the provisions of this article, with legal interest thereon from the time of payment. Such return of overpayment shall be made in the manner provided by section two hundred and twenty-five of this article. Estates in expectancy which are contingent or de- feasible and in which proceedings for the determina- 86 THE LAW OF TAXABLE TRANSFERS. tion of the tax have not been taken or where the taxation thereof has been held in abeyance, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the bene- ficial enjoyment or possession thereof, without diminution for or on account of any valuation there- tofore made of the particular estates for purposes of taxation, upon which said estates in expectancy may have been limited. Where an estate for life or for years can be divested by the act or omission of the legatee or devisee it shall be taxed as if there were no possibility of such divesting. All estates upon remainder or reversion, which vested prior to May first eighteen hundred and ninety-two, but which will not come into actual possession or enjoyment of the person or corporation beneficially interested therein until after the passage of this act shall be appraised and taxed as soon as the person or corporation bene- ficially interested therein shall be entitled to the actual possession or enjoyment thereof. (2 Heydecker's Gen'l Laws, 1937, § 230, as amended by chap. 173, Laws of igoi, as amended by chap. 493, Laws of 1901. See also chap. 406 of i8gg, now repealed.) The following is the head note of a decision of Sur- rogate Silkman, reported in New York Law Journal May 8, 1901, Vol. XXV, No. 33: COMPOSITION AS TO TAX. 87 In the Matter of the Appraisal for Taxation of the Estate of SARAH ROCKWOOD FULLER, Deceased. The amendment to chapter 24 of the General Laws by chapter 173, Laws 1901, providing for the appraise- ment of estates for the transfer tax in certain coun- ties by the county treasurer, and that the fees for such services shall consist of certain percentages of the taxes paid pursuant to the appraisement, is unconstitutional, in that, as the appraisement is a judicial proceeding and the appraiser would be per- sonally interested in the result, the procedure would constitute deprivation of property without due process of law. The remedy by appeal to the surrogate will not cure such vice of unconstitutionality. The vice of unconstitutionality does not extend to the entire act, but only to the amendments in so far as they direct an appraisement before an interested officer. These only fail with the result that the original act, in reference to the method of procedure provided by it for the appointment of appraisers by the surrogate, still continues to be the law. I 230a. Composition of transfer tax upon certain estates. — The county treasurer of any county in which the office of appraiser is not salaried, by and with the consent of the comptroller of the state of New York, expressed in writing, and the state comp- troller in any other county, by and with the consent of the attorney-general expressed in writing, is hereby 88 THE LAW OF TAXABLE TRANSFERS. empowered and authorized in a county in which they receive payments on account of transfer tax, to enter into an agreement with the trustees of any estate therein situate, in which remainders or expectant estates have been of such a nature, or so disposed and circumstanced, that the taxes therein were held not presently payable, or where the interests of the legatees or devisees were not ascertainable under the provisions of chapter four hundred and eighty-three of the laws of eighteen hundred and eighty-five; chapter three hundred and ninety-nine of the laws of eighteen hundred and ninety-two, or chapter nine hundred and eight of the laws of eighteen hundred and ninety-six, and the several acts amendatory thereof and supplemental thereto ; and to compound such taxes upon such terms as may be deemed equi- table and expedient ; and to grant discharge to said trustees upon the payment of the taxes provided for in such composition ; provided, however, that no such composition shall be conclusive in favor of said trustees as against the interests of such cestuis que trust, as may possess either present rights of enjoy- ment, or fixed, absolute or indefeasible rights of future enjoyment, or of such as would possess such rights in the event of the immediate termination of particular estates, unless they consent thereto, either VALUE OF FUTURE ESTATE. 89 personally, when competent, or by guardian or com- mittee. Composition or settlement made or effected under the provisions of this section shall be executed in triplicate, and one copy shall be filed in the office of the state comptroller, one copy in the office of the surrogate of the county in which the tax was paid, and one copy to be delivered to the executors, administrators or trustees who shall be parties thereto. (As added by Laws of 1901, chapter 173, § 6; substantially the same as Laws of 1900, chap. 379, now by this chapter repealed.) Value of future estate, etc. ; how ascertained. The Superintendent of Insurance has not made public any rule, method or standard of mortality and value employed by him in ascertaining the value of policies of life insurance and annuities for the deter- mination of liabilities of life insurance companies. Section 232, as amended by Laws of 1901, Chapter i73> § 8 {post, p. 102), requires the Superintendent of Insurance, on the application of any surrogate, to determine the value of any such future or contingent estates, income, or interest therein limited, contingent, dependent, or determinable upon the life or lives of persons in being, upon the facts contained in any such appraiser's report, and certify the same to the surrogate, and his certificate shall be conclusive evi- dence that the method of computation adopted therein is correct. No provision is made for a hearing before the Superintendent, and there may be a question as to the constitutionality of the provision, in so far as it 90 THE LAW OF TAXABLE TRANSFERS. attempts to conclude parties interested other than the state. Perhaps the duty may be ministerial and nothing more. The rule, method and standard of mortality and value referred to in section 230 cannot be accurately stated. Section 84 of the Insurance Law, 3 Hey- decker's Gen'l Laws, 3141, as amended in 1901 (Chap.^ 346), is as follows : § 84. Valuation of policies, — The superintendent of insurance shall annually make valuations of all out- standing policies, additions thereto, unpaid dividends, and all other obligations of every life insurance cor- poration doing business in this state. All valuations made by him or by his authority shall be made upon the net premium basis, according to the standard of valuation adopted by the company for the obliga- tion to be valued; provided, that in every case the standard of valuation employed shall be stated in his annual report. Any company may adopt dif- ferent standards for obligations of different dates or classes, but if the total value determined by any such standard for the obligations for which it has been adopted shall be less than that determined by the legal minimum standard hereinafter prescribed, or if the company adopt no standard, said legal minimum standard shall be used. The legal minimum standard for contracts issued before the first day January, nine- teen hundred and one, shall be the actuaries' or com- bined experience table of mortality with interest at four per centum per annum, and for contracts issued on or after said day shall be the American experience table of mortality with interest at three and one-half per centum per annum. The superintendent may vary MORTALITY TABLES. 91 the standards of interest and mortality in the case of corporations from foreign countries and in particular cases of invalid lives and other extra hazards, and value policies in groups, use approximate averages for frac- tions of a year and otherwise, and calculate values by net premiums or otherwise, and accept the valuation of the department of insurance of any other state in place of the valuation herein required if the insurance officer of such state accepts as sufficient and valid for all purposes the certificate of valuation of the Super- intendent of Insurance of this state. Life insurance companies use what is known as the Actuaries' Table of Mortality, and the "expectation of Life," according to the Actuaries, and also according to the H™., the American, the Carlisle, and the Northampton Table of Mortality, is as follows : AGE. ACTUARIES. H". AMERICAN. CARLISLE. NORTHAMPTON. 10 48.36 50.29 48,72 48.82 39.78 11 47.68 49.54 48.08 48.04 39.14 12 47.01 48.73 47.45 47.27 38.49 13 46.33 47.89 46.80 46.51 37.83 14 45.64 47.03 46.16 45.75 37.17 15 44.96 46.16 45.60 45.00 36.51 16 44 27 45.29 44.85 44.27 35.85 17 43.58 44.44 44.19 43.57 35.20 18 42.88 43.61 43.53 42.87 34.58 19 42.19 42.82 42.87 42.17 33.99 20 41.49 42.06 42.20 41.46 33.43 21 40.79 41.33 41.53 40.75 32.90 22 40.09 40.60 40.85 40.04 32.39 23 39.39 39.88 40.17 39.31 31.88 24 38.68 39.15 39.49 38.59 31.36 25 37.98 38.41 38.81 37.86 30.85 26 37.27 37.66 38.12 37.14 30.33 92 THE LAW OF TAXABLE TRANSFERS. AGE. ACTUARIES, Hin. AMERICAN. CASUSLB. NORTHAMPTON. 27 36.56 36.91 37.43 36.41 29.82 28 35.86 36.16 36.73 35.69 29.30 29 35.15 35.42 36.03 35.00 28.79 30 34.43 34.68 35.33 34.34 28.27 31 33.72 33.95 34.63 33.68 27.76 32 33.1(1 33.21 33,92 33.03 27.24 33 32.30 32.48 33.21 32 36 26.72 34 31.58 31.75 32.50 31.68 26.20 35 30.87 31 02 31.78 31.00 25.68 36 30.15 30.29 31.07 30.32 25.16 37 29.44 29.56 30.35 29.64 24.64 38 28.72 28.84 29.62 28.96 24.12 39 28.00 28.12 28.90 28.28 23.60 40 27.28 27.40 28.18 27.61 23.08 41 26.56 26.68 27.45 26.97 22.56 42 25.84 25.96 26.72 26.34 22.04 43 25.12 25.23 26.00 25.71 21.64 44 24.40 24.61 25.27 25.09 21.03 45 23.69 23.79 24 . 54 24.46 20.52 46 22.97 23.08 23.81 23.82 20.02 47 22.27 22.38 23.08 23.17 19.51 48 21.56 21.68 22.36 22.50 19.00 49 20 87 20.99 21.63 21.81 18.49 50 20.18 20.31 20.91 21 11 17.99 51 19.50 19.63 20.20 20.39 17.50 62 18.82 18.95 19.49 19.68 17.02 53 18.16 18.28 18.79 18.97 16.64 54 17.50 17.62 18.09 18.28 16.06 55 16.86 16.96 17.40 17.58 16.58 66 16.22 16.32 16 72 16.89 16-10 57 15.59 15.68 16.05 16.21 14.63 58 14.97 15.05 15.39 15.65 14.15 69 14.37 14.44 14 74 14.92 13.68 60 13.77 13,83 14.10 14.34 13 21 61 13.18 13.24 13.47 13.82 12.75 62 12.61 12.66 12.86 13.31 12.28 63 12.05 12.10 12.26 12.81 11.81 MORTALITY TABLES. 93 AGE. ACTUARIES. Hm. AMERICAN. CARLISLE. NORTHAMPTON. 64 11.51 11.55 11.67 12.30 11.35 65 10.97 11.01 11.10 11.79 10. S8 66 10.46 10.49 10.54 11.27 10.42 67 9.96 9.98 10.00 10.75 9.96 68 9.47 9.48 9.47 10.23 9.50 69 9.00 8.98 8.97 9.70 9.05 70 8.54 8.50 8.48 9.18 8.60 71 8.10 8.03 8.00 8.65 8.17 72 7.67 7.58 7.55 8.16 7.74 73 7.26 7.15 7.11 7.72 7.33 74 6.86 6.75 6.68 7.33 6.92 75 6.48 6.38 6.27 7.01 6.54 76 6.11 6.02 5.88 6.69 6.18 77 5.76 5.67 5.49 6.40 5.83 78 5.42 5.34 5.11 6.12 5.48 79 5.09 5.03 4.74 5.80 5.11 80 4.78 4.72 4.39 5.51 4.75 81 4.48 4.43 4.05 5.21 4.41 82 4.18 4.17 3.71 4.93 4.09 83 3.90 3.93 3.39 4.65 3.80 84 3.63 3.71 3.08 4.39 3.58 85 3.36 3.51 2.77 4.12 3.37 86 3;10 3.31 2.47 3.90 3.19 87 2.84 3.10 2.18 3.71 3.01 88 2.59 2.88 1.91 3.59 2.86 89 2 35 2.63 1.66 3.47 2.66 90 2.11 2.36 1.42 3.28 2.41 91 1.89 2.08 1.19 3.26 2.09 92 1.67 1.80 .98 3.37 1.75 93 1.47 1.50 .80 3.48 1.37 94 1.28 1.20 .64 3.53 1.05 95 1.12 .93 .50 3.53 .75 96 .99 .68 3.46 .50 97 .89 .50 3.28 98 .75 8.07 • . • • 99 .50 2.77 ■ ■ > > 100 2.28 94 THE LAW OF TAXABLE TRANSFERS. Appraiser ; when to be appointed. The time when the surrogate shall proceed ta appoint an appraiser and fix the transfer tax on the decedent's estate must be left to his own judgment where the interests are ascertainable and do not depend on the prior ascertainment of the facts as to claims against the estate. He is not bound to await a final accounting. (Matter of Westurn, 152 N. Y. 93, rev'g s. c, 8 App. Div. 59.) But he should not proceed on his own motion until eighteen months after the death of the decedent. (Matter of Astor, 28 Abb. N. C. 405.) Property should be appraised and tax assessed as soon after death as practicable. {Matter of Vassar, 127 N. Y. i.) The duty, however, of apply- ing for appraisement is primarily on the executor. (Eraser v. People, 6 Dem. 174.) And the legatees need not be cited on such application. (Matter of Astor, 20 Abb. N. C. 405.) But the comptroller of New York City should have notice of proceedings to appraise an estate for the imposition of a transfer tax where the surrogate of that county has jurisdiction. (Matter of Wolfe, 15 Supp. 539.) Appraiser ; when guilty of misdemeanor. An appraiser appointed by virtue of the Taxable Transfer Law, who takes any fee or reward from an executor, administrator, trustee, legatee, next of kin, or heir of any decedent, or from any other person liable to pay such tax, or any portion thereof, is guilty of a misdemeanor. (Penal Code, Sec. 48c, Laws of 1893, Chap. 692.) Provision not retroactive. Provision of section 230 of the Tax Law, "whenever appraiser's proceedings. 95 an estate for life or for years can be divested by the act or omission of the legatee or devisee, it shall be taxed as if there were no possibility of such limita- tions," has no retroactive effect and applies only to the life estate, not to the reversion. {Matter of Sloane, 19 App. Div. 411, afE'd 154 N. Y. 109.) § 231. Proceedings by appraiser. — Every such appraiser shall forthwith give notice by mail to all per- sons known to have a claim or interest in the property to be appraised, including the state comptroller, and to such persons as the surrogate may by order direct, of the time and place when he will appraise such property. He shall, at such time and place, appraise the same at its fair market value as herein prescribed, and for that purpose the said appraiser is authorized to issue subpoenas and to compel the attendance of witnesses before him and to take the evidence of such witnesses under oath concerning such property and the value thereof; and he shall make report thereof and of such value in writing, to the said sur- rogate, together with the depositions of the witnesses examined, and such other facts in relation thereto and to said matter as the surrogate may order or require. Every appraiser, except in the counties in which the office of appraiser is salaried, for which provision is hereinbefore made, shall be paid on the certificate of the surrrogate, subject to review and 96 THE LAW OF TAXABLE TRANSFERS. audit by the state comptroller, his actual and neces- sary traveling expenses and the fees paid such wit- nesses, which fees shall be the same as those now paid to witnesses subpoenaed to attend in courts of record, out of any funds he may have in his hands as county treasurer on account of any tax imposed under the provisions of this article. Appraisers appointed under this article in proceedings pending at the time the amendment to this section takes effect shall complete the appraisals therein and file their reports as herein provided, and shall be entitled to the compensation authorized by law at the time of their appointment, to be paid by the state comp- troller in counties in which the ofSce of appraiser is salaried, and in other counties by the county treas- urer, out of any moneys in his hands on account of this tax. (As amended by Laws of igoi, Chapter 173, § 7.) (See 2 Heydecker's Gen'I Laws, 1939, as amended by L. 1901, chap. 173-) Notice. Before the liability of the taxpayer becomes fixed he must have some kind of notice of the proceeding against him, and a hearing or an opportunity to be heard in reference to the value of his property and the amount of the tax which is thus to be imposed. Unless he has these his constitutional right to due process of law has been invaded. {Matter of McPher- APPRAISER S PROCEEDINGS. 97 son, 104 N. Y. 231.) An assessment of a transfer tax made -without notice to the sole heir at law is void as to her, and she should not be put to the trouble and expense of obtaining, after having made payment, a refund of the tax from the state comptroller ; but the report of the appraiser, although confirmed by the surrogate, should be set aside. (Matter of Winters, 21 Misc. 552.) Method of procedure. A proceeding for the ascertainment and determina- tion of a transfer tax is controlled by the statute on the subject in force at the time the proceeding is instituted, although the tax itself and the rights of the parties are controlled by an earlier statute. So, in a proceeding instituted in 1896, upon the determi- nation of a particular estate, to ascertain the amount of the transfer tax upon the legacy and remainder under the will of one who died in 1890, the rights of the parties depended upon the statute as amended in 1887, but the method of procedure upon the statute of 1892. {Matter of Sloane, 154 N. Y. 109, aff'g 19 App. Div. 4 II.) The order appointing the appraiser should designate the persons on whom notices are to be served, and these should be all who are interested in the whole estate and by law entitled to notice of pro- ceedings affecting the same. The surrogate is to fix the length of time. {Matter of Astor, 20 Abb. N. C. 405 ; Matter of Vanderbilt, 10 Supp. 239.) The appraiser should report not only service of notice on all persons named by the surrogate, but also that they are all (or not all) the persons known to him (the appraiser) to have or claim an interest in such prop- 7 98 THE LAW OF TAXABLE TRANSFERS. erty. {Matter of Astor, 17 St. Rep. 787.) Before the Act of 1892 an appraiser could not administer oaths and take testimony. {Matter of Astor, 20 Abb. N. C. 405.) If the property is in more than one county, one appraiser may appraise it all. {Matter of Keenan, 5 Supp. 200.) In a proceeding to assess the value of decedent's estate for the purpose of taxation under the provi- sions of the Transfer Tax Act there is no necessity for the appointment of a special guardian of an infant party whose interest is ia remainder. No costs will be allowed to such guardian. {Matter of Post, 5 App. Div. 113.) Evidence. Testimony of the executor as to declarations of the testator as to value of the notes is not competent ; his own conclusion that they were valueless, if not objected to, may properly be considered. {Morgan v. Warner, 45 App. Div. 424.) Competency of witness. Upon the question whether the decedent stood in the mutually acknowledged relation of a parent to a beneficiary under his will, such beneficiary is not rendered incompetent by section 829, Code Civil Pro- cedure, to testify in regard to ' ' confidential communi- cations and acknowledged relations growing out of an agreement between ' ' him and decedent, for the pur- pose of showing the acknowledged relation of parent and child between the decedent and the witness. {Matter of Brundage, 31 App. Div. 348.) So, a resid- uary legatee, son of the decedent, may testify to inter- appraiser's proceedings. 99 views had by him with the decedent tending to show that a particular legacy was given to him by the will in payment of a debt for services rendered by him to the decedent. {Matter of Gould, 19 App. Div. 352.) An appraiser cannot hear evidence in regard to the debts of the deceased, the funeral expenses and expenses of administration. He must make hisvreport of the whole value of each legacy or distributive share at the time of transfer, without making any deduction whatever. The surrogate, however, may make such deductions ; as it may fairly be inferred that the legislative intent was that the debts owing by the decedent should be deducted from the value of the estate so left by him. {Matter of Millward, 6 Misc 425 ; Matter of Ludloiv, 4 Misc. S94.) Postponement of appraisal. Where the will of a testator, dying in 1890, gave the net income of a certain sum of money to the use of his widow for life, or until her remarriage, and upon the occurrence of either event, directed the executors to pay one-half of the principal to a foreign corporation, upon the remarriage of the widow in 1896, the value of such bequest to the corporation is properly computed by deducting from the principal of one-half the fund the value of the estate therein of the widow during her widowhood. {Matter of Sloane, 154 N. Y. 109, aff'g s. c. 19 App. Div. 411.) Appraisal ; how made. The appraisal of cash legacies is not necessary. {Matter of Jones, 10 St. Rep. 163; Matter of Astor, 20 Abb. N. C. 405.) They are taxable without appraisal. ICO THE LAW OF TAXABLE TRANSFERS. {Matter of Bird, 33 St. Rep. 899; Matter of Kavanaugh, 6 Supp. 669; opinion of Deputy Comptroller, August 13, 1891.) A note upon which the administrators have begun suit should not be appraised as part of the taxable estate while the litigation thereupon is pending and undetermined. {Matter of Westurn, 152 N. Y. 102, reversing 8 App. Div. 59.) Where a note of the legatee is included in a testator's residuary estate, the amount should be included in assessing the legacy tax. {Matter of Twig, 15 Sapp. 548; Matter of Crosby, 46 St. Rep. 442 ; Matter of Bartlett, 4 Misc. 380.) An administrator has a lien and right of determination upon the distributive share of a legatee in an estate to the amount of his indebtedness to it, and such fact should be taken into consideration by the appraiser and such indebtedness appraised. {Matter of Smith, 14 Misc. 169.) Annuities must be computed at their value at the death of the testator, irrespective of the fact that the principal will thereby be diminished. {Matter of Leavitt, 4 Supp. 179.) Mortgage debts should not be deducted by the appraiser from the amount of the personal property for the purpose of arriving at the value of the succession. The real estate is the pri- mary fund out of which the mortgages are to be paid. {Matter of Sutton, 15 Misc. 659.) If all the beneficiaries are taxable, the tax on the life estate is to be paid from the income and that on the remainder from the principal. If the life tenant's interest is not taxable, still the tax on the interest of the remainderman is to be paid from the principal. {Matter of Johnson, 6 Dem. 146; contra, opinion of Attorney-General, February 4, appraiser's report. 1886.) In case the life estate go to a person exempt, with a remainder, within the Act, the value of the life estate must be deducted from the fair value of the property, and the remainder is subject to the tax. {Matter of Jones, 19 Abb. N. C. 221.) Where an appraiser made use of and exhausted every remedy under the law as it then was in force in appraising an estate, the state is bound by his acts and conclusions, unless he committed errors for which an appeal might have been taken. {Matter of Smith, 14 Misc. 169.) Report. The appraiser should report only on the property subject to taxation, not exemptions. {Matter of Wal- lace, 18 St. Rep. 387; Matter of Astor, 17 St. Rep. 737.) A legatee claiming exemption and not notified by the surrogate of his determination of the taxable value of the legacy may ask to have the decree modified so as to show his exemption, and the Surrogate, in the absence of laches, may in his discretion entertain the application though made more than sixty days sub- sequent to the decree. {Matter of Daly, 34 Misc. 148.) When in doubt the appraiser should report the prop- erty as liable to a tax. {Matter of Astor, ly St. Rep. 787; Matter of Hendrick, 18 St. Rep. 989.) He should report that he has appraised all property subject to the payment of the tax. {Matter of Astor, 17 St. Rep. 787.) He should also report the fair market value of the property or chattels subject to the tax, and all his proceedings and all facts known to him germane to the duties imposed by the order. {Matter of Astor, 20 Abb. N. C. 405.) He should report the legacies tax- able, irrespective of a provision in the will for the 102 THE LAW OF TAXABLE TRANSFERS. payment of the tax thereon as an expense of adminis- tration. The residuary estate should not be reduced for the purposes of taxation by the amount of such taxes. {Matter of Swift, 137 N. Y. -JT.) See notes under section 220 as to contingent and expectant estates, and as to what property is liable to the tax and what deductions should be made. Fees ; how paid. The appraiser's fees may be paid out of any tax money in the county treasurer's hands. (Opinion of Attorney-General Feb. 4 1886.) § 232. Determination of surrogate. — The report of the appraiser shall be made in duplicate, one of which duplicates shall be filed in the office of the surrogate and the other in the office of the state comptroller. From such report and other proof relating to any such estate before the surrogate, the surrogate shall forthwith, as of course, determine the cash value of all estates and the amount of tax to which the same are liable ; or the surrogate may so determine the cash value of all such estates and the amount of tax to which the same are liable, without appointing an appraiser. The superintendent of insurance shall, on the application of any surrogate, determine the value of any such future or contiligent estates, income or interest therein limited, contingent, dependent or determinable upon the life or lives of surrogate's determination. 103 persons in being, upon the facts contained in any such appraiser's report, and certify the same to the surrogate, and his certificate shall be conclusive evi- dence that the method of computation adopted therein is correct. The comptroller of the state of New York or any person dissatisfied with the ap- praisement or assessment and determination of tax, may appeal therefrom to the surrogate, within sixty days from the fixing, assessing and determination of tax by the surrogate as herein provided, upon filing in the office of the surrogate a written notice of appeal, which shall state the grounds upon which the appeal is taken. The surrogate shall immediately give notice, upon the determination by him as to the value of any estate which is taxable under this article, and of the tax to which it is liable, to all parties known to be interested therein, including the state comptroller. If, however, it appear at this stage of the proceedings that any of such parties known to be interested in the estate is an infant or an incom- petent, the surrogate shall, if the interest of such infant or incompetent is presently involved and is adverse to that of any of the other persons interested therein, appoint a special guardian of such infant; but nothing in this provision shall affect the right of an infant over fourteen years of age or of I04 THE LAW OF TAXABLE TRANSFERS. any one on behalf of an infant under fourteen years of age to nominate and apply for the appointment of a special guardian for such infant at any stage of the pro- ceedings. Within two years after the entry of an order or decree of a surrogate determining the value of an estate and assessing the tax thereon, the comptroller of the state may, if he believes that such appraisal, assessment or determination has been fraudulently, collusively, or erroneously made, make application to a justice of the supreme court of the judicial dis- trict in which the former owner of such estate resided, for a reappraisal thereof. The justice to whom such application is made may thereupon appoint a competent person to reappraise such estate. Such appraiser shall possess the powers, be subject to the duties and receive compensation at the rate of five dollars per day for every day actually and neces- sarily employed in such appraisal. Such compensa- tion shall be payable by the county treasurer or state comptroller, out of any funds he may have on account of any tax imposed under the provisions of this article, upon the certificate of the justice appointing him. The report of such appraiser shall be filed with the justice by whom he was appointed, and thereafter the same proceedings shall be taken and had by and before such justice as are herein provided to be taken surrogate's determination. 105 and had by and before the surrogate. The deter- mination and assessment of such justice shall super- sede the determination and assessment of the surrogate, and shall be filed by such justice in the office of the state comptroller, and a certified copy thereof transmitted to the surrogate's court of the proper county. (As amended by Laws igoi, chapter 173, § 8.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1939.) Section not exclusive. If the remedy provided by this section were intended to be exclusive it ■would conflict with the provision of the Constitution of 1894, which provided that the jurisdiction of the Appellate Division should thence- forth be as then exercised by the General Term in addition to such further jurisdiction as should be given to the said court by said statute. {Morgan v. Warner 45 App. Div. 424.) Who may appeal. The district attorney may appeal from the decision of the surrogate on the judicial settlement of the accounts of executors on behalf of the people, on the ground that the transfer tax has not been imposed and paid. {Matter ofArnett, 49 Hun, 599.) The inter- ests of the several beneficiaries under a single order imposing the transfer tax are separate and independ- ent, and the comptroller of the City of New York is not estopped by receiving the tax upon a life estate from appealing from so much of the same order as declares that a vested remainder, after the life estate, I06 THE LAW OF TAXABLE TRANSFERS. "is at present undeterminable and is not now subject to tax." {Matter of Bogart, 25 Misc. 466.) This sec- tion, authorizing the comptroller within two years after the entry of a surrogate's order determining the value of an estate and assessing the transfer tax thereon to make application to a justice of the Supreme Court for the re-appraisal, is not exclusive of other remedy ; and if the comptroller simply desires a review of the surrogate's determination he may appeal from the order under section 2570 of the Code of Civil Procedure, authorizing an appeal to the Appellate Division from " an order affecting the substantial right, made by a surrogate or by a surrogate's court in a special proceeding. ' ' {Morgan v. Warner, 45 App. Div. 424.) Proceedings of surrogate on appeal. The surrogate is the assessing and taxing officer, and as such the representative of the state for the purposes relating to the appraisement and taxation of property. He may proceed with the assessment of the tax without notice to any city official. {Matter of Wolfe, 137 N. Y. 205, reversing s. c. 66 Hun, 389.) Under the Act of 1885, it was not necessary that notice of an order of the surrogate assessing a tax be given to the person thereby affected, but only a notice that the order had been made, was necessary. {Matter of Miller, no N. Y. 216.) Two methods of establishing the value of an inheritance and fixing the tax are provided by law ; one by the aid of an appraiser, and the other by the surrogate without such aid. Either method is complete in itself, and when one has been adopted it precludes any resort to the other. {Matter PROCEEDINGS ON APPEAL. I07 of Davis, 91 Hun, 53.) Where the statute requires the grounds of the appeal to be stated, none except those specified can be considered. {Matter of Davis, 149 N. Y. 539.) And unless the comptroller specify in his notice of appeal an item allowed by the appraiser which he claims to be erroneous, that matter cannot be made a subject of inquiry by the surrogate. {Mat- ter of Davis, 149 N. Y. 540; Matter of Wormser, 51 App. Div. 441.) The failure to take advantage of the right to appeal from the assessment of a transfer tax within the time fixed by the statute is a bar to the subsequent raising of any question as to the correctness of the amount assessed. {Matter of Hacket, 14 Misc. 282.) The statute ought to be construed so as to permit the raising upon an appeal of a question which did not enter into the original determination, and which was first made known after the appeal had been taken, and after the expiration of the sixty days. The surrogate would still have jurisdiction though the new question was not specified in the notice of appeal. {Matter of Westurn, 152 N. Y. 93.) The only remedy for the correction of prior legal errors in the determination of a transfer tax by a sur- rogate seems to be by the appeal prescribed in this section. {Morgan v. Cowie, 49 App. Div. 612.) The surrogate, in the reasonable exercise of his discretion, may deny an application to submit additional papers. {Matter of Wormser, 51 App. Div. 441.) He may per- mit ex parte, an appraisal to be opened and may modify an order assessing a transfer tax, and permit an exec- utor to show that certain securities of his testator have been appraised higher than their actual market value. {Matter of Fulton, 30 Misc. 70.) So, he may I08 THE LAW OF TAXABLE TRANSFERS. modify an order fixing the transfer tax upon an estate after the time to appeal therefrom has expired, where it is shown that certain legacies upon which the five per cent, tax was imposed had lapsed by the death of the legatees prior to the death of the testator, and passed to the testator's widow, in whose hands they were chargeable with only the one per cent. tax. In readjusting the tax the value of the shares of the person chargeable therewith should be determined as of the time of the testator's death. {Morgan v. Cowie, 49 App. Div. 612.) On appeal to a surrogate from the confirmation of an appraiser's report as to the estate, for the purpose of a transfer tax and from an assesment of the tax in conformity therewith, taken under section 13 of the Act of 1892, appellant should be permitted to file additional allegations to the effect that since the appraisal litigation has been commenced to determine who are the heirs and next of kin of the decedent, thus creating a controversy which affects the title to the whole estate, although the sixty days allowed for an appeal have expired and the grounds specified in the notice of appeal do not include the matter of these allegations, when it appears that the litigation was not commenced until after the expira- tion of the time allowed for an appeal ; and the surro- gate should either postpone the appraisement until the litigation is determined, or at least receive and consider the proofs of the allegations. {Matter of Westurn, 152 N. Y. 93.) Where it is apparent that the ruling excluding evidence may have been very preju- dicial to the appellant, the court will not insist upon an exception thereto as a prerequisite to a review. (Matter of Brundage, 31 App. Div. 348.) SECOND APPRAISAL. IO9 What deductions made. The principle that in administering the statute, debts, commissions and expenses of administration should be deducted in ascertaining taxable values, accords with the general practice and is permitted by a just construction of the law. {Matter of Westurn, 152 N. Y. 93.) Expenses of litigation over the will, although charged to the estate, cannot be deducted from the taxable values. (Id.) The legacy and suc- cession duties imposed by the United States War Revenue Act of 1898, are not to be deducted before ascertaining the value of an estate for the purposes of the transfer tax imposed by state laws. Neither can the estimated commissions of the trustees as such be so deducted. Services of executors in their capac- ity as trustees are of advantage only to the beneficia- ries. {Matter of Becker, 26 Misc. 633.) Second appraisal. An error of the appraiser as to the value of a claim or asset should be corrected by appeal from the assess- ment, and not by setting aside the appraisal. {Matter af Smith, 14 Misc. 169.) It is not ground for setting aside the report of an appraiser to the effect that there are no claims against the estate that a claim has act- ually been presented against the estate ; the appellant must show that such claim is a valid one. (Matter of Westurn, 8 App. Div. 59.) The decision in same case (152 N. Y. 102), reiversing decision below, did not touch upon this point. The state comptroller cannot institute a second appraisal upon property of a decedent once honestly appraised at what is determined to be its fair market no THE LAW OF TAXABLE TRANSFERS. value, and an allowance for debts once made is con- clusive. A new appraisal cannot be had to show that the estimated deductions were in fact excessive. The order fixing the tax on the basis of the appraisal originally made is conclusive upon such matters until it is reversed or modified. {Matter of Rice, 56 App. Div. 253, aff'g s. c. 29 Misc. 404.) The provisions of the Tax Law authorizing the comptroller to apply, within two years from the entry of an order or decree fixing the transfer tax, for a new appraisal, if he believes that the first appraisal was fraudulently, coUusively or erroneously made, do not apply to matters of law; e. g., the determination that the bequests made to an executor for his services to the testatrix is exempt from taxation. {Matter of Niven, 29 Misc. 550.) A surrogate cannot order a further appraisal of per- sonalty not taxed on the first appraisal, because claimed by a daughter of the decedent to have been assigned to her by her mother, although subsequently, at the suit of the only other child, it is adjudged to be a part of the decedent's estate. {Matter of Lansing, 31 Misc. 148.) Final adjudication. If a surrogate, knowing of the existence of person- alty, determines that it is not taxable, such determi- nation is final, where there is no appeal from the order of taxation and it«stands for five years. If, however, a subsequent adjudication vacates the assignment to the daughter and permits the will of the decedent to operate on her whole estate, the contention of an exemption by a prior adjudication as to personalty POWER OF REVIEW. Ill not taxed on the first appraisal has no force; and upon proof that an appeal had been taken from the said adjudication, the surrogate directed the new ap- praiser to suspend action until the litigation had been finally determined. {Matter of Lansing, 31 Misc. 148.) Former adjudication. A transfer tax adjudication in this State expressly limited to real estate does not operate to suspend pro- ceeding to tax personalty not disclosed on the first appraisal. {Matter of Crerar, 31 Misc. 481, reversed on another point, s. c, 56 App. Div. 479.) Power of review. Under section 232 of the Tax Law, an order made by a justice of the Supreme Court directing the reap- praisal of the estate of a decedent for the purpose of assessing the transfer tax thereon, cannot be vacated by the Supreme Court. {Matter of Smith, 40 App. Div. 480.) Where no question of fact is in controversy, and the only question involved is the legal construction of the instrument of transfer and the statute, the pro- vision of the Constitution, article 6, section 9, and of Code Civil Procedure, section 191, that no unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting the finding of fact, shall be reviewed by the Court of Appeals, is not applicable. {Matter of Greene, 153 N. Y. 223.) An order of the Appellate Division reversing " upon the facts and the law " a decree of the surrogate's court confirming the report of an appraiser levying a transfer tax, where the surrogate rejected, and the 112 THE LAW OF TAXABLE TRANSFERS. Appellate Division accepted, the version of the bene- ficiary's story most favorable to herself, cannot be reviewed by the Court of Appeals. {Matter of Thome, 162 N. Y. 238, dismissing appeal s. c. 44 App. Div. 8.) Value of future or contingent estates; how ascer- tained. Before the Act of 1887, the value of estates for life were computed according to the Northampton Table. Determination by surrogate ; how far conclusive. An adjudication of the surrogate in a special pro- ceeding under the Collateral Inheritance Tax Law is necessarily limited to the subject of taxation, and is not conclusive upon the rights of the parties arising from matters outside of the will. {Amherst College v. Ritch, 151 N. Y. 282, 343.) § 2 33. Surrogates' assistants in New York county. — The surrogates of the county of New York may jointly appoint and at pleasure remove assistants as follows : I . In New York county, a transfer tax assistant, at an annual salary of four thousand dollars ; a transfer tax clerk, at an annual salary of two thousand four hundred dollars; an assistant clerk, at an annual salary of eighteen hundred dollars ; a recording clerk, at a salary of thirteen hundred dollars; and shall be entitled to not more than five hundred dollars a year for expenses necessarily incurred in the assessment surrogate's assistants. 113 and collection of taxes under this article. Such sal- aries and expenses shall be payable monthly by the state comptroller on the certificate and requisition of the surrogates, accompanied by proper vouchers, out of any funds in his hands on account of taxes col- lected under this article. (As amended by Laws of igoi, chapter 173, section 9; revised and re-enacted from Tax Law, § 233 and Laws 1896, chap. 952.) (As amended prior to igoi, see 2 Heydecker's Gen'l Laws, 1941.) Since the passage of Chapter 658 of the Laws of 1900, the surrogate of New York county cannot select an appraiser to assess the tax, and can only direct one of the state comptroller's appraisers to proceed in the matter, and this although the tax be assessable under Chapter 399 of 1892. (Matter of Sondheim, 32 Misc. 296 ) § 234. Surrogates' assistants in Kings and certain other counties. — The surrogates of the counties mentioned in this section may appoint and at pleas- ure remove assistants as follows: I. In the county of Kings, a transfer tax assistant, at an annual salary of four thousand dollars, and a transfer tax clerk, at an annual salary of two thous- and dollars; and shall be entitled to not more than five hundred dollars a year, for expenses necessarily incurred in the assessment and collection of taxes under this article. 8 114 THE LAW OF TAXABLE TRANSFERS. 2. In the county of Westchester, a transfer tax assistant, at an annual salary to be fixed by the sur- rogate, of not more than two thousand dollars. (See Chap. 86 1 of 1895.) 3. In the county of Suffolk, a transfer tax clerk, at an annual salary of seven hundred and twenty dollars. 4. In the county of Oneida, not more than two transfer tax clerks, at an annual compensation to be fixed by the surrogate, of not more in the aggregate than twelve hundred dollars. (See Chap. 375 of 1897.) 5. In the county of Ulster, a transfer tax clerk, at an annual salary, to be fixed by the surrogate, of not more than seven hundred and twenty dollars. (See Chap. 269 of 1899.) 6. In the county of Onondaga, a transfer tax clerk, at an annual salary, to be fixed by the surrogate, of not more than twelve hundred dollars. (See Chap. 953 of 1896.) 7. In the county of Monroe, two transfer tax clerks, at an annual salary of seven hundred and fifty dol- lars each ; and shall be entitled to not more than two hundred dollars a year for expenses necessarily in- curred in the assessment and collection of taxes under this article. (See Chap. 952 of 1896.) PROCEEDINGS TO COLLECT TAX. II5 8. In the county of Erie, a transfer tax clerk, at an annual salary of eighteen hundred dollars. (See Chap. 270 of 1899.) 9. In the county of Albany, a transfer tax clerk at an annual salary to be fixed by the surrogate, of not more than one thousand dollars. Such salaries and expenses shall be payable monthly by the state comptroller on the certificate and requisition of the surrogate of each such county, accompanied by proper vouchers, out of any funds in his hands on account of taxes collected under this article. (As amended by Laws of 1901, Chapter 173, § 10.) (As amended prior to igoi, see 2 Heydecker's Gen'l Laws, 1941,) § 235. Proceedings for the collection of taxes. — If the county treasurer or state comptroller shall have reason to believe that any tax is due and unpaid in a county in which he is authorized to receive the tax under this article, after the refusal or neglect of the persons liable therefor to pay the same, he shall notify the district attorney of the county, in writing, of such failure or neglect, and such district attorney, if he have probable cause to believe that such tax is due and unpaid, shall apply to the surrogate's court for a citation, citing the persons liable to pay such tax to appear before the court on the day specified, Il6 THE LAW OF TAXABLE TRANSFERS. not more than three months after the date of such citation, and show cause why the tax should not be paid. The surrogate, upon such appHcation, and whenever it shall appear to him that any such tax accruing under this article has not been paid as required by law, shall issue such citation and the service of such citation, a,nd the time, manner and proof thereof, and the hearing and determination thereon and the enforcement of the determination or order made by the surrogate shall conform to the provisions of the code of civil procedure for the ser- vice of citations out of the surrogate's court, and the hearing and determination thereon and its enforce- ment so far as the same may be applicable. The surrogate or his clerk shall, upon request of the dis- trict attorney, county treasurer, or the comptroller of the state, furnish, without fee, one or more transcripts of such decree, which shall be docketed and filed by the county clerk of any county of the state without fee, in the same manner and with the same effect as provided by law for filing and docketing transcripts of decrees of the surrogate's court. The costs awarded by any such decree after the collection and payment of the tax to the county treasurer or state comptroller may be retained by the district attorney for his own use. Such costs shall be fixed by the PROCEEDINGS TO COLLECT TAX. 11/ surrogate in his discretion, but shall not exceed in any case where there has not been a contest, the sum of one hundred dollars, or where there has been a contest the sum of two hundred and fifty dollars. Whenever the surrogate shall certify that there was probable cause for issuing a citation and taking the proceedings specified in this section, the state treas- urer shall pay or allow to the county treasurer or the state comptroller all expenses incurred for the ser- vice of citations and other lawful disbursements not otherwise paid. In proceedings to which any county treasurer or the state comptroller is cited as a party under sections two hundred and thirty and two hun- dred and thirty-one of this article, the state comp- troller is authorized to designate and retain counsel to represent such county treasurer or state comp- troller therein, and to direct such county treasurer in a county in which the office of appraiser is not salaried to pay the expenses thereby incurred out of the funds which may be in his hands on account of this tax, and in any other county the state comp- troller shall pay such expenses out of any funds which may be in his hands on account of this tax ; pro- vided, however, that in the collection of taxes upon estates of non-resident decedents, which estates have been concealed or the taxes thereon evaded, the state Il8 THE LAW OF TAXABLE TRANSFERS. comptroller shall not allow for legal services up to and includingpthe entry of the order of the surrogate fixing the tax a sum exceeding ten per centum of the taxes and penalties collected. And the comptroller of the state is hereby authorized, with the approval of the attorney-general, and a justice of the supreme court of the judicial district in which the former owner resided, to compromise and settle the amount of such tax in any case where controversies have arisen or may hereafter arise as to the relationship of the beneficiaries to the former owner thereof. (As amended by Laws of igoi, chapter 173, § 11.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1942.) Proceedings by the district attorney for the enforce- ment and collection of a tax may be taken only where the tax is due and has not been paid. The determination of the question of a liability to taxation does not belong exclusively to such proceedings. An adjudication exempting certain legacies from liability to taxation is a complete bar to the mainte- nance of any subsequent proceeding by the district attorney to collect a tax thereupon. {Matter of Wolfe, 137 N. Y. 205, reversing 66 Hun, 389.) No costs can be allowed against the executors in proceedings by the district attorney where the exec- utors pay the tax before the expiration of the eighteen months. (Frazcr v. People, 6 Dem. 174.) Section 15 of Chapter 399, Laws of 1892 (now section RECEIPT. 119 23 s of the Tax Law), provides for the taxation of costs in two events. In proceedings in which the district attorney is unsuccessful he must show that fact and furnish evi- dence from which the court may be able to determine that there was probable cause for commencing the proceedings. (Matter of McCarthy, 5 Misc. 276.) The allowance of costs to the comptroller on appeal to the surrogate is within the sound discretion of the surrogate, and should not be disturbed except for sufficient cause. {Matter of Hoffman, 76 Hun, 399.) § 236. Receipt from the county treasurer and comp- troller. — Any person shall upon the payment of the sum of fifty cents be entitled to a receipt from the county treasurer of any county or the state comp- troller, or at his option to a copy of a receipt that may have been given by such treasurer or state comp- troller for the pajmient of any tax under this article, under the official seal of such treasurer or comp- troller, which receipt shall design te upon what real property, if any, of which any decedent may have died seized, such tax shall have been paid, by whom paid, and whether in full of such tax. Such receipt may be recorded in the clerk's office of the county in which such property is situate, in a book to be kept by him for that purpose, which shall be labeled " trans* fer tax." (As amended by Laws of igoi, Chapter 173, § 11.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1943.) I20 THE LAW OF TAXABLE TRANSFERS. § 237. Fees of county treasurer. — The treasurer of each county in which the office of appraiser is not salaried shall be allowed to retain on all taxes paid and accounted for by him each year under this- article, five per centum on the first fifty thousand dollars, three per centum on the next fifty thousand dollars, and one per centum on all additional sums. Such fees shall be in addition to the salaries and fees, now allowed by law to such officers. (As amended by Laws of 1901, Chapter 173, § 12.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1944.) § 238. Books and forms to be furnished by the state comptroller. — The comptroller of the state shall furnish to each surrogate, a book, which shall be a public record, and in which he shall enter the name of every decedent upon whose estate an application to him has been made for the issue of letters of administration, or letters testamentary, or ancillary letters, the date and place of death of such decedent, the estimated value of his real and personal property,, the names, places, residence and relationship to him of his heirs-at-law, the names and places of residence of the legatees and devisees in any will of any such decedent, the amount of each legacy and the esti- ' mated value of any real property devised therein, and to whom devised. These entries shall be made from. REPORTS OF SURROGATE. 121 the data contained in the papers filed on any such application, or in any proceeding relating to the estate of the decedent. The surrogate shall also enter in such book the amount of the personal prop- erty of any such decedent, as shown by the inventory thereof when made and filed in his office, and the returns made by any appraiser appointed by him under this article, and the value of annuities, life estates, terms of years, and other property of any such decedent or given by him in his will or otherwise, as fixed by the surrogate, and the tax assessed thereon, and the amounts of any receipts for payment of any tax on the estate of such decedent under this article filed with him. The state comptroller shall also furnish to each surrogate forms for the reports to be made by such surrogate, which shall correspond with the entries to be made in such book. (Revised from Laws 1892, c. 399, § 18; 2 Heydecker's Gen'l Laws, 1944.) § 239. Reports of surrogate and county clerk. — Each surrogate shall, on January, April, July and October first of each year, make a report in dupli- cate, upon the forms furnished by the comptroller containing all the data and matters required to be entered in such book, one of which shall be imme- diately delivered to the county treasurer and the 122 THE LAW OF TAXABLE TRANSFERS. Other transmitted to the state comptroller. The county clerk of each county, except in the counties where the registers perform the duties of the county clerk with respect to the recording of deeds, and when in such counties the registers, shall, at the same times, make reports in duplicate, containing a state- ment of any deed or other conveyance filed or recorded in his office, of any property, which appears to have been made or intended to take effect in pos- session or enjoyment after the death of the grantor or vendor, with the name and place of residence of such grantor or vendor, the name and place of resi- dence of the grantee or vendee, and a description of the property transferred, one of which duplicates shall be immediately delivered to the county treas- urer or comptroller and the other transmitted to the state comptroller. In a county in which the office of appraiser is salaried but one copy of each such report need be made, which shall be transmitted to the state comptroller as herein required. (As amended by Laws of 1901, chapter 173, § 13.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1945.) § 240. Reports of county treasurer. — Each county treasurer in a county in which the office of appraiser is not salaried shall make a report, under oath, to the state comptroller, on January, April, July and October REPORT OF STATE COMPTROLLER. I 23 first of each year, of all taxes received by him under this article, stating for what estate and by whom and when paid. The form of such report may be pre- scribed by the state comptroller. He shall, at the same time, pay the state treasurer all taxes received by him under this article and not previously paid into the state treasury, and for all such taxes collected by him and not paid into the state treasury within thirty days from the times herein required, he shall pay interest at the rate of ten per centum per annum. (As Amended by Laws of 1901, Chapter 173, § 13.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1945.) § 240a. Report of state comptroller; payment of taxes. — The state comptroller shall deposit all taxes collected by him under this article in a responsible bank, banking house or trust company in the city of Albany, as, in the opinion of the comptroller are secure, and pay the highest rate of interest to the state for such deposit, to the credit of the state comp- troller on account of the transfer tax. And every such bank, banking house or trust company shall execute and file in his office an undertaking to the state, in the sum, and with such sureties, as are required and approved by the comptroller, for the safe keeping and prompt payment on legal demand 124 THE LAW OF TAXABLE TRANSFERS. therefor of all such moneys held by or on deposit in such bank, banking house or trust company, with interest thereon on daily balances at such rate as the comptroller may fix. Every such undertaking shall have endorsed thereon, or annexed thereto, the approval of the attorney-general as to its form. The state comptroller shall on the first day of each month make a verified return to the state treasurer of all taxes received by him under this article, stating for what estate, and by whom and when paid ; and shall credit himself with all expenditures made since his last previous return on account of such taxes, for salary, refunds, or other purpose lawfully chargeable thereto. He shall at the same time pay to the state treasurer the balance of such taxes remaining in his hands at the close of business on the last day of the previous month, as appears from such returns. (Added by Laws of 1901, Chapter 173, § 14.) § 241. Application of taxes. — All taxes levied and collected under this article when paid into the treas- ury of the state shall be applicable to the expenses of the state government and to such other purposes, as the legislature shall by law direct. (As amended by Laws of 1901, chapter 173, § 15.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1945.) DEFINITIONS. 125 I 242. Definitions. — The words " estate " and " property," as used in this article, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred to those not herein specifically exempted from the provisions of this article, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property or interest therein, whether situated within or without this state. The word " transfer," as used in this article, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein prescribed. The words " county treasurer," " comptroller," and " district attorney," as used in this article, shall be taken to mean the treas- urer, state comptroller or the district attorney of the county of the surrogate having jurisdiction as pro- vided in section two hundred and twenty-nine of this article. (As amended by Laws of 1901, chapter 173, § 16.) (As amended prior to 1901, see 2 Heydecker's Gen'l Laws, 1945.) Section 22 of 1892 (242) exempts United States bonds from valuation for the purpose of fixing the tax under 126 THE LAW OF TAXABLE TRANSFERS. that Transfer Tax Act. {Matter of Sherman, 153. N. Y. I.) § 243. Exemptions in article one not applicable. — The exemptions enumerated in section four of the Tax Law, of which this article is a part, shall not be construed as being applicable in any manner to the provisions of article ten hereof, (Added Laws of 1900, chap. 382, § 2. 2 Heydecker's Gen'l Laws, 1946.) (See Matter of Howell, 34 Misc. 40.) Laws repealed. — Chapter eight hundred and sixty- one of the laws of eighteen hundred and ninety-five \ chapters nine hundred and fifty-two and nine hundred and fifty-three of the laws of eighteen hundred and ninety-six, chapter three hundred and seventy-five of the laws of eighteen hundred and ninety-seven ; and chapters two hundred and sixty-nine, two hundred and seventy and four hundred and six of the laws of eighteen hundred and ninety-nine, and chapter three hundred and seventy-nine of the laws of nineteen hundred, are hereby repealed. (Laws of 1901, chap. 173, § 17.) When act takes effect. — This act shall take effect April first, nineteen hundred and one, except that salaried appraisers for the counties of Albany, Suffolk, Westchester, Dutchess, Monroe, Oneida, WHEN ACT TAKES EFFECT. 127 Onondaga, Orange and Rensselaer shall not be appointed before January first, nineteen hundred and two, and until such time such counties shall be deemed counties in which the office of appraiser is not salaried under the provisions of this act. (Laws of rgoi, chapter 173, § i8.) (By chap. 283 of 1901, chap. 173, § 18, supra, was amended by strik- ing out "Queens," THE WAR REVENUE LAW* OF 1898 AS APPLICABLE TO LEGACIES AND DISTRIBUTIVE SHARES OF PERSONAL PROPERTY. Sec. 29. That any person or persons having in charge or trust, as administrators, executors, or trus- tees, any legacies or distributive shares arising from personal property, where the whole amount of such personal property as aforesaid shall exceed the sum of ten thousand dollars in actual value, passing, after the passage of this Act, from any person possessed of such property, either by will or by the intestate laws of any state or territory, or any personal property or interest therein, transferred by deed, grant, bargain, sale, or gift, made or intended to take effect in pos- session or enjoyment after the death of the grantor or bargainer, to any person or persons, or to any body or bodies, politic or corporate, in trust or other- wise, shall be, and hereby are made subject to a duty or tax, to be paid to the United States, as follows — that is to say : Where the whole amount of said per- sonal property shall exceed in value ten thousand and shall not exceed in value the sum of twenty-five thousand dollars the tax shall be : *See Heydecker & McMahon's Annotated War Revenue Laws. 9 [129] I30 THE WAR REVENUE LAW. First. Where the person or persons entitled to any beneficial interest in such property shall be the lineal issue or lineal ancestor, brother, or sister to the person who died possessed of such property, as aforesaid, at the rate of seventy-five cents for each and every hun- dred dollars of the clear value of such interest in such property. Second. Where the person or persons entitled to any beneficial interest in such property shall be the descendant of a brother or sister of the person who ^ied possessed, as aforesaid, at the rate of one dollar and fifty cents for each and every hundred dollars of the clear value of such interest. Third. Where .the person or persons entitled to any beneficial interest in such property shall be the brother or sister of the father or mother, or a descend- ant of a brother or sister of the father or mother, of the person who died possessed, as aforesaid, at the rate of three dollars for each and every hundred dollars of the clear value of such interest. Fourth. Where the person or persons entitled to any beneficial interest in such property shall be the brother or sister of the grandfather or grandmother, or a descendant of the brother or sister of the grand- father or grandmother, of the person who died pos- sessed, as aforesaid, at the rate of four dollars for each, and every hundred dollars of the clear value of such interest. Fifth. Where the person or persons entitled to any beneficial interest in such property shall be in any other degree of collateral consanguinity than is here- inbefore stated, or shall be a stranger in blood to the person who died possessed, as aforesaid, or shall be THE WAR REVENUE LAW. I3I a body politic or corporate, at the rate of five dollars for each and every hundred dollars of the clear value of such interest : Provided, That all legacies or prop- erty passing by will, or by the laws of any state or territory, to husband or wife of the person died pos- sessed, as aforesaid, shall be exempt from tax or duty. Where the amount or value of said property shall exceed the sum of twenty-five thousand dollars, but shall not exceed the sum or value of one hundred thous- and dollars, the rates of duty or tax above set forth shall be multiplied by one and one-half; and where the amount or value of said property shall exceed the sum of one hundred thousand dollars, but shall not exceed the sum of five hundred thousand dollars, such rates of duty shall be multiplied by two ; and where the amount or value of said property shall exceed the sum of five hundred thousand dollars, but shall not exceed the sum of one million dollars, such rates of dutj'- shall be multiplied by two and one-half; and where the amount or value of said property shall exceed the sum of one million dollars, such rates of duty shall be multiplied by three: Provided, That nothing in this section shall be construed to apply to bequests or legacies for uses of a religious, literary, charitable, or educational character, or for the encouragement of art, or to legacies or bequests to societies for the prevention of cruelty to children, including all bequests or legacies of such char- acter on which the tax imposed had not been paid or col- lected on the first day of March, nineteen hundred and one. And provided further , That the provisions of this Act and of the Act hereby amended shall not be held to apply to any estate where the testator or intestate died before June thir- teenth, eighteen hundred and ninety-eight. 132 THE WAR REVENUE LAW. "Witli the exception of the last paragraph, preced- ing the proviso in italics, this section is taken, with a change of rates, from sec. 124, ch. 173, stat. 1864, which is slightly modified from sec. iii, ch. 119, Stat. 1862. See R. S., sees. 3438-3440. The proviso in italics is added by the Act of 1901, amending the War Revenue Law of 1898, and is to take effect on the first day of July, 1901. APPLICABLE TO DISTBICT OF COLUMBIA, The application of the War Revenue Act to the District of Columbia is secured by section 31, which incorporates therein the laws relating to the assess- ment of taxes; and by U. S. R. S., section 3140, the District of Columbia is to be regarded as a state in construing the Internal Revenue Laws. {Knowlton v. Moore, 178 U. S. 41 ; 20 S. Ct. 747.) Tax, a duty or excise. The tax imposed by sections 29 and 30 of the War Revenue Law is a duty or excise as distinguished from a tax on property, and is not included in a direct tax, which must be proportioned under U. S. Const., article I, section 10. {Knowlton v. Moore, 178 U. S. 41 ; 20 S. Ct. 747; Scholey v. Rew, 23 Wall. 331 [1874].) Tax imposed upon transmission. The taxes upon legacies and distributive shares of personal property are imposed upon the transmission or on receipt of such inheritance and legacies, and not upon the right of the state to regulate the devo- lution of property upon death. {Knowlton v. Moore, 178 U. S. 41 ; 20 S. Ct. 747.) THE WAR REVENUE LAW. I33 Progressive rate feature not unconstitutional. The question whether the progressive tax is more just and equal than a proportional one is, in the absence of constitutional limitation, a legislative and not a judicial question. A progressive rate feature, therefore, cannot be held unconstitutional on the ground that it is repugnant to fundamental princi- ples of equity and justice. {KnowUon v. Moore, 178 U. S. 41 ; 20 S. Ct. 747.) Not affected by difference between testamentary and intestacy laws of the states. The primary right of taxation upon legacies and distributive shares under the War Revenue Law depends upon the degree of relationship or want of relationship to the deceased ; and the rate is the same wherever the degree of relationship or the want of relationship is the same, so that the rule is uniform ; although there may be different conditions among the states as to the objects upon which the tax is levied, and difference between the testamentary and intestacy laws of the states, such difference does not prevent the geographical uniformity of the tax. (Knowlton v. Moore, 178 U. S. 41 ; 20 S. Ct. 747.) CONSTITUTIONAL UNIFORMITY. Uniformity required by U. S. Const., article i, sec- tion 9, to the effect that duties, imposts and excises shall be uniform throughout the United States is not an intrinsic uniformity relating to the inherent char- acter of the tax as respects its operations on individ- uals, but is merely a geographical uniformity requiring the same plan and the same method to be operative 134 THE WAR REVENUE LAW. throughout the United States. (Knowlton v. Moore, i;8 U. S. 41; 20 S. Ct. 747.) What affected by progressive rate. It is the amount of each principal, legacy, or dis- tributive share, and not the sum of the whole personal estate of the decedent, on which the progressive rate of tax is imposed by sections 29 and 30 of the War Revenue Act, and by which the rate is measured. {Knowlton v. Moore, 178 U. S. 41 ; 20 S. Ct. 747.) United States bonds not exempted. A legacy or distributive share of a decedent's estate of United States bonds is not exempted from the tax, on the transmission thereof, imposed by the War Revenue Law by reason of the declaration in the Federal statutes and on the face of the bonds, to the effect that they are exempt from taxation ; the tax is not upon the bonds, but on the right of transfer. (Murdockv. Ward, 178 U. S. 139; 20 S. Ct. 775.) Action to recover illegal tax. A judgment dismissing an action by a legatee against the United States to recover an alleged illegal tax imposed under the War Revenue Act, although the statute is held constitutional, but on a proper construction thereof it is also held not to justify the imposition of the whole amount of the tax that was collected, will be reversed. It matters not that in another action the executor has established his right to recover the illegal excess from the internal revenue collector. {Sherman v. U. S., 178 U. S. 150; 20 S. Ct. 779-) THE WAR REVENUE LAW. 1 35 But an affirmance of a judgment sustaining the constitutionality of the Act, when no other question is raised by the plaintiff in error, may be had without prejudice to his right to relief as to so much of the tax, if any, as may have arisen from the wrong inter- pretation of the statute, where the officers charged with its administration have adopted and enforced an unsound interpretation of the statute, by which an excessive amount of the tax has been imposed. {Fidelity Insurance, Trust and Safe Deposit Company v. McClain, 178 U. S. 113; 20 S. Ct. 774.) Statute construed fairly and judicially, with reference to both parties. There is no reason requiring it to be construed liberally in favor of the government. {JDe Bary v. Souer, loi Fed. Rep. [C. C. A, La. 1900] 425.) On what estates chargeable. The legacy tax only applies to the estate of one who dies possessed of the property; thus, when A., before the passage of the Act, executed a trust deed of property, in which he reserved an income for him- self and wife, and on their death directed the imme- diate distribution among his children, held not tax- able. {U. S. V. Leverich, 9 Fed. Rep, 586 [188 1].) The tax is not chargeable unless the property in the absence of a will would be distributable under the intestate laws of some state or territory, although the situs of the property is within the United States. {Ruckgaber v. Moore [U. S. C. C. N. Y. 1900], 104 Fed. 947.) The tax is only chargeable on estates of those who 136 THE WAR REVENUE LAW. die domiciled in United States. {U. S. v. Hunnewell^ 13 Fed. Rep. 617 [1882].) So held where testator removed his residence to Europe and died there. {U. S. v. Morris, 27 Fed. Rep. 341 [1886].) As to whether the interest of a resident citizen under the will of a non-resident alien is subject to the tax. {U. S. v. Rankin, 8 Fed. Rep. 872 [1881].) A legacy, not vested until after the repeal of the legacy tax, although given in a will probated before such repeal, was not subject to the tax. {Mason v. Sergeant, 104 U. S. 689 [1881]; Sturges v. U. S., 117 U. S. 363 [1886]; U. S. V. Kelfy, 28 Fed. Rep. 845 [1886]; [/. S. V. Hazard, 8 Fed. Rep. [1881]; U. S. v. Brice, 8 Fed. Rep. 381 [1881]; U. S. v. N. Y., L. I. dr T. Co., 9 Ben. 413 [1878]; Clapp v. Mason, 94 U. S. 589 [1876].) Money received from an executor on compromise of a will contest is not taxable, being neither a "legacy" nor a " distributive share." Page v. Rives, I Hughes, 297 [1877].) Money arising from the sale of real estate under a clause in a will directing the executor to sell the real estate and "convert it into cash" is not taxable. {U. S. V. Watts, I Bond. 580 [1865].) Where a bequest is made in trust to pay off debts the legacy tax must be paid. {Foster v. Lay, 2 Scott, 284 [1835]; Turners. Martin, 3 Jur. N. S. 397 [1856].) The Act does not make the estate liable when the ' ' person possessed of such property ' ' dies testate, if the tax would not be payable if such person died intestate. {U. S. v. Hunnewell, 13 Fed. Rep. 617 [1882].) The tax applies to estates of persons dying on or after June 13, 1898. THE WAR REVENUE LAW. 1 37 As to death on day of passage, see Burgess v. Sal- mon, 7 Otto, 381 [1878].) (See Heydecker & McMahon's Annotated War Revenue Laws.) LEGACY TAX A LIEN. HOW RETURNED AND PAID OR COLLECTED. Sec. 30. That the tax or duty aforesaid shall be a lien and charge upon the property of every person who may die as aforesaid for twenty years, or until the same shall, within that period, be fully paid to and discharged by the United States; and every executor, administrator, or trustee, before payment and distribution to the legatees, or any parties enti- tled to beneficial interest therein, shall pay to the collector or deputy collector of the district of which the deceased person was a resident the amount of the duty or tax assessed upon such legacy or distributive share, and shall also make and render to the said collector or deputy collector a schedule, list, or state- ment, in duplicate, of the amount of such legacy or distributive share, together with the amount of duty which has accrued, or shall accrue, thereon, verified by his oath or affirmation, to be administered and certified thereon by some magistrate or officer having lawful power to administer such oaths, in such form and manner as may be prescribed by the Commis- sioner of Internal Revenue, which schedule, list, or statement shall contain the names of each and every person entitled to any beneficial interest therein, together with the clear value of such interest, the duplicate of which schedule, list, or statement shall be by him immediately delivered, and the tax thereon paid to such collector ; and upon such payment and 138 THE WAR REVENUE LAW. delivery of such schedule, list, or statement said col- lector or deputy collector shall grant to such person paying such duty or tax a receipt or receipts for the same in duplicate, which shall be prepared as herein- after provided. Such receipt or receipts, duly signed and delivered by such collector or deputy collector, shall be s'lfficient evidence to entitle such executor, administrator, or trustee to be credited and allowed such payment by every tribunal which, by the laws of any state or territory, is, or may be, empowered to decide upon and settle the accounts of executors and administrators. And in case such executor, adminis- trator, or trustee shall refuse or neglect to pay the aforesaid duty or tax to the collector or deputy col- lector, as aforesaid, within the time hereinbefore provided, or shall neglect or refuse to deliver to said collector or deputy collector the duplicate of the schedule, list, or statement of such legacies, property, or personal estate, under oath, as aforesaid, or shall neglect or refuse to deliver the schedule, list, or statement of such legacies, property, or personal estate, under oath, as aforesaid, or shall deliver to said collector or deputy collector a false schedule or statement of such legacies, property, or personal estate, or give the names and relationship of the per- sons entitled to beneficial interests therein untruly, or shall not truly and correctly set forth and state therein the clear value of such beneficial interest, or where no administration upon such property or personal estate shall have been granted or allowed under existing laws, the collector or deputy collector shall make out such lists and valuation as in other cases of neglect or refusal, and shall assess the duty THE WAR REVENUE LAW. 1 39 thereon; and the collector shall commence appro- priate proceedings before any court of the United States, in the name of the United States, against such person or persons as may have the actual or construc- tive custody or possession of such property or per- sonal estate, or any part thereof, and shall subject such property or personal estate, or any portion of the same, to be sold upon the judgment or decree of such court, and from the proceeds of such sale the amount of such tax or duty, together with all costs and expenses of every description to be allowed by such court, shall be first paid, and the balance, if any, deposited according to the order of such court, to be paid under its direction to such person or persons as shall establish title to the same. The deed or deeds, or any proper conveyance of such property or per- sonal estate, or any portion thereof, so sold under such judgment or decree, executed by the officer law- fully charged with carrying the same into effect, shall vest in the purchaser thereof all the title of the delin- quent to the property or personal estate sold under and by virtue of such judgment or decree, and shall release every other portion of such property or per- sonal estate from the lien or charge thereon created by this Act. And every person or persons who shall have in his possession, charge, or custody any record, file, or paper containing, or supposed to contain, any information concerning such property or personal estate, as aforesaid, passing from any person who may die, as aforesaid, shall exhibit the same at the request of the collector or deputy collector of the district, and to any law officer of the United States, in the performance of his duty under this Act, his I40 THE WAR REVENUE LAW. deputy or agent, who may desire to examine the same. And if any such person, having in his posses- sion, charge, or custody any such records, files, or papers, shall refuse or neglect to exhibit the same on request, as aforesaid, he shall forfeit and pay the sum of five hundred dollars: Provided, that in all legal controversies where such deed or title shall be the subject of judicial investigation, the recital in said deed shall be prima facie evidence of its truth, and that the requirements of the law have been complied with b)"- the officers of the government. And provided further. That in case of wilful neglect, refusal, or false statement by such executor, administrator , or trustee, as aforesaid, he shall be liable to a penalty of not exceeding one thousand dollars to be recovered with costs of suit. Any tax paid under the provisions of sections twenty -nine and thirty shall be deducted from the particular legacy or dis- tributive share on account of which the same is charged. Act of 1862 (July i), sec. 112. Act of 1864 (June 30), sec. 125. R. S., sec. 3440. The matter in italics is added by the Act of March 2, 1901, amending the War Revenue Law of 1898, and is to take effect on the first day of July, 1901. Sec. 12. That from and after the passage of this Act the Secretary of the Treasury, upon the recommendation of the Commissioner of Internal Revenue, is authorized to appoint a competent person, at an annual salary of three thous- and dollars, whose special duty it shall be to conduct such in- vestigations as may be necessary to secure the efficient en- forcement of the tax imposed upon legacies and distribu- tive shares of personal property by this Act, and the Com- THE WAR REVENUE LAW. 14I missioner of Internal Revenue may also from time to time 4issign one or more special agents to aid in such investiga- tions. (Added by Act of March 2, 1901.) (See Heydecker & McMahon's Annotated War Revenue Laws.) The tax accrues on the death of the testator, but does not become payable until the legatee becomes entitled to the legacy, and the subsequent repeal of the Act before the legatee becomes thus entitled, does not release the tax. (1878) Hellman v. U. S., 15 Blatchf. 13. (1881) U. S. V. Townsend, 8 Fed. Rep. 306. (1872) May V. Slack, 16 I. R. R. 134. The tax is to be paid by the executor and deducted from the legacy ; if he pays it, he may recover it from the legatee, by suit if necessary. (1873) Duvallv. Eng. E. L. Church, 53 N. Y. 500. A legatee is not liable in personam for the tax ; as far as the act imposes such a liability, it is on the executor. (1877) U. S. V. Allen, 9 Ben. 154. But under a "succession" to real estate (sees. 126 to 137 of Act of June 30, 1864), it was held otherwise. (1879) U. S. V. Tappan, 10 Ben. 284. As to form of protest on payment and statute of limitations on suit brought for recovery. (1879) Wright V. Blakeslee, loi U. S. 174. Procedure by United States to collect legacy tax. (1886) U. S. V. Truck, 28 Fed. Rep. 846. 142 THE WAR REVENUE LAW. TAX A PRIOR LIEN. The lien for taxes imposed upon the personal prop- erty takes precedence of a prior mortgage on such property, although the statute does not in terms declare that the lien for taxes shall be paramount. {^Minnesota v. Central Trust Co., 94 Fed. Rep. 244; 36 C. C. A. 214.) (See Heydecker and McMahon's Annotated War Revenue Laws.) FORMS. No. 1. PETITION FOR APPOINTMENT OF APPRAISER. (Ante, § 230.) Subeogate's Couet, CoimTT. In the Matter of the Estate of Deceased. To Hon , Arrogate : The petition of respectfully shows upon information and belief : First. That your petitioner is and is therefore a person interested in the estate of the above decedent. Second. That the said decedent died on the day of 189 , and that at the time of death was a resident of the of , N. T. (or, a non-resident of this State^ 143 144 FORMS. Third. That said decedent left a last will and testament, which was duly admitted to probate on the day of 189 , (or, that said decedent left no last will and testament) and that letters testamentary (or, of ad/mmistration) were duly issued to upon the day of 189 , and that the postoflBce addresses of the is {a/ri) Fowrih. That as your petitioner is informed and believes, the property of said decedent or some interest therein is subject to the payment of the tax imposed by Article X. of the Tax Law, as amended, in relation to Taxable Transfers. Fifth. That the following are all the persons interested in said estate and who are entitled to notice of these pro- ceedings, including the treasurer of the county of and the state comptroller. Name. Nature of Interest. Postoffice Address. Wherefore, your petitioner prays for the appointment of an appraiser, as provided by law. And your petitioner wiU ever pray. Dated, , 190 . I^etitioner. FORMS. 145 State of New York, | >-ss. County of , ) , being duly sworn, says that he has read the foregoing petition and knows the contents thereof ; that the same is true of his own knowl- edge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. Sworn to before me, this ) day of 189 . j 146 FORMS. No. 2. OKDEE APPOINTING APPEAISER. (Ante, § 230.) At a Surrogate's Court, held in and for the County of , at the Surro- gate's office in the of , N. Y., on the day of 189 . Present : Hon Subeogate. In the Matter of the Estate of Deceased. It appearing to the satisfaction of the Surrogate that certain property left by the above-named ,. late of the of , deceased, is sub- ject to a State tax, under Article X. of the Tax Law, as amended, in relation to Taxable Transfers, now in pur- suance of the statute in such case made and provided (amZ ufon the a/pjplioabion of ), I do hereby direct , Esq., of , N. Y., (the county treasurer of the county of , or the appraiser, or one of the appraisers of the county of ) to fix the fair market value of the property which is subject to the payment of said tax. FORMS. 147 And I direct said appraiser to give not less than days' notice by mail, of the time and place of such appraisal to each of the following named persons : Name. Nature of Interest. PostoflBoe Address. And I further order and direct that at the time and place in said notice mentioned, the said appraiser shall appraise the said property at its fair market value, and forthwith make a report of his proceedings, in writing, to the Surrogate. Sv/rrogate. 148 FORMS. Wo. 3. NOTICE OF APPKAISAL. (Ante, § 231.) Subeogate's Court, County. In the Matter of the Estate of Deceased. To , State Comjptroll&r. Take notice, that having been appointed appraiser, in pursuance of Article X. of the Tax Law, as amended, in relation to Taxable Transfers, I shall appraise the taxable interests growing out of the estate of said deceased, at my office, No in the of N. Y., on the day of 189 , at ■o'clock in the noon. Dated, 189 . Ajpprcdser. FORMS. 149 Due and sufficient service of the above notice is hereby admitted this day of 189 . State Comptroller. N". B.^ — Proof is required of the following facts : (1.) Yalue of each parcel of real estate and encumbrances thereon. In fixing such value, actual sales of neighboring real estate, similarly situated, during the year imme- diately preceding decedent's death must be taken into consideration. (2.) Value of personal property. The value of securities having a quoted or market value should be ascer- tained as of the date of decedent's death, and for a reasonable period before and after that date. (3.) Amount of debts, funeral expenses and expenses of administration. The required value of property is in all cases the fair value at the date of death of decedent. It is desired that a copy of the will and of the inventory, if any, be produced before the appraiser. 150 FORMS. No. 4. APPEAISEE'S SUBP(ENA. (Ante, § 231.) The People of the State of New Yoek. To Gbeeting : We command you, That (all and singxdar business and excuses being laid aside) you be and appear in your own and proper persons before an appraiser duly appointed by the Surrogate of County pursuant to Article X. of the Tax Law, as amended, in relation to Taxable Transfers, at his office, JS'o in the of IST. Y., on the day of 189 , at . . . . o'clock in the .... noon, to testify all and singular what you may know in a certain pro- ceeding now pending before said appraiser for the ap- praisal of property which was of , deceased, and the transfer of which is liable to taxation under the said Act. And for a failure to attend you wiU be deemed guilty of a contempt of court and liable to pay all the losses or damages sustained by the parties aggrieved and to forfeit Fifty Dollars in addition thereto. Dated 189 . Appraiser. FORMS. 151 No. 5. REPOKT OF APPEAISEK. (Ante, § 231.) Stieeogate's Couet County. In the Matter of the Estate of Deceased. To Son Surrogate : I, the undersigned, who was on the day of 189 , appointed appraiser under and pur- suant to Article X. of the Law, as amended, in relation to Taxable Transfers, to fix the fair market value of property, the transfer of which by the of , deceased, is taxable under said Act, respect- fully report as follows. First. That forthwith after my said appointment I gave notice by mail, postage prepaid, to aU persons named in the order appointing me such appraiser, and to all persons known to me to have a claim or interest in the property to be appraised, including the County Treas- urer of County and the State Oomptroll&r of 152 FOEMS. the time and place at which I would appraisfe such property. Second. I further report that at the time and place in said notice stated, to wit : at my office in the of K T., on the day of 189 , and thereafter from time to time pursuant to adjourn- ments regularly had, I appraised all the property which had been of the said deceased and the transfer of which was apparently subject to the payment of said tax, at its fair market value, as follows : SCHEDULE "A." Estate Deceased. Date of decedent's death, Residence of decedent, Property transferred by "Will — Intestate Law, Eecord of Will, Liber , Page , Date of Letters, Names, Titles and Addresses of Legal Eepresenta- tives. Etc., FORMS. 15S w Q W U en Value of Property or Interest. 1 u ft m o 1^ "S ftg oiS; Is Name and Residence of the Person or the Title and Location of the Corpora- tion to whom Taxable Property has been Trans- ferred. 154 FOEMS. SCHEDULE "C" Getnbral Statement of Other Facts Relative to the Pkoperty Teansfereed. FORMS. 155 The foregoing marked " Schedule A " shows the deoed- ■ent's name, date of death and place of residence, whether the taxable property was transferred by will or the in- testate laws, date of letters, and the names, titles and addresses of the legal representatives. The foregoing marked " Schedule B " shows the name of the person or the title of the corporation to whom the taxable property was transferred, and opposite thereto the relationship of such person, a general description of the property transferred, and the nature of the interest, whether absolute or otherwise, and the fair market value of the property or interest at the time of the transfer. The foregoing marked " Schedule C " contains a state- ment of other facts relative to the property transferred. I do further report that the depositions of the witnesses examined before me in this proceeding are hereto an- nexed and marked " Schedule D." " Schedule E " hereto attached contains other facts in relation to the tax on said estate reported for the infor- mation of the surrogate. I do hereby further report that I have been actually and necessarily employed days in making said appraisals, etc., and that actual and necessary traveling expenses, including the fees paid witnesses and postage amount to $ Dated 189 Appraiser. 156 FORMS. State of New York, ) >-ss. : County of ) being duly sworn, says that he has read the above report by him subscribed, and knows the contents thereof, and that the same is true. Sworn to before me this day of 189 FORMS. •157 No. 6. APPEAISEK'S BILL. (Ante, § 231.) (Duplicate.) K Y., 189 . Bill of , for services and expenses as appraiser, under Article X. of the Tax Law, as amended, in relation to Taxable Transfers. Estate of. Days' Services. Expenses. Amount. I certify that the foregoing bill is correct. 189 . Sv/rrogate. Eeoeived, iN". Y., 189 of , County Treasurer of County Dollars. % 158 FORMS. No. 7. NOTICE TO SUPEKINTENDENT OF INSUEAISTOE. (Ante, § 232.) Stjbeogatb's Chambebs, County. KT., 189. To THE Superintendent of the Insueakoe Depaetment^ State of New York. Sib : — You are requested to compute the present value of the following estates created by the of deceased for the purpose of assessing thereupon a transfer tax : {e. ff.) Life use of $ bequeathed to aged .... years, said use to commence at the death of , aged. . . .years. Yours respectfully, /Surrogate. FORMS. 159 No. 8. OKDEK ASSESSmG TAX. (Ante, § 232.) At a Surrogate's Court, held in and for the County of at the Sur- rogate's office in the of the day of 189 . Present — Hon 8v/rrogate. In the Matter of the Estate of Deceased. Upon reading and filing the report of heretofore by an order of this Court appointed appraiser in this matter, pursuant to Article X. of the Tax Law, as amended, in relation to Taxable Transfers, and after due consideration had, it is Ordered, That the cash value of all the legacies, estates, annuities, life estates, terms of years, property and interests growing out of the estate of said deceased, and which are subject to tax under said Act, and the tax to 160 FORMS. W^hich the same are liable, shall be and the same hereby are assessed and fixed as f oUows : Beneficiary. Tax. Date of death of testat 189 . If said tax is paid within six months after said date, a rebate of five per centum thereon will be allowed. If not paid within eighteen months after date of death, it will bear interest from said date at the rate of ten per centum per annum. "Witness my hand and the seal of this office, the day and year [L.rf.] first above written. Surrogate. FORMS. 161 No. 9. NOTICE OF TAX. (Ante, § 232.) Stteeogate's Cottet, County. In the Matter of the Estate of Deceased. To. Take notice, that upon the report of Esq., appraiser, which was filed in the office of the Surrogate of County, N. Y., on the day of 189 , I have assessed and fixed the cash value of the property bequeathed and devised to you by and under the will (or, descendJmg and to he distributed to you as one of the hevrs-at-lam am.d next of Tcvn) of said deceased, at the sum of $ I have further assessed and fixed the tax to which said property is liable at the sum of $ , which said last mentioned sum is at once due and payable to the County Treasurer of County (or &tate Comptroller). 162 FORMS. If said tax is paid before the day of 189 , no interest will be charged, and a discount of five per centum will be allowed and deducted therefrom. After the day of 189 , interest on said tax at ten per centum per annum will be charged. Dated 189 . Swrrogate. Ho. 10. PETITIOllT OF DISTEICT ATTOENEY. (Ante, § 235.) Stjbeggate's Coubt, Cotnrrr. In the Matter of the Estate of Deceased. To the Surrogate of the County of The petition of of in said County, respectfully shows upon information and belief : FORMS. 163 Fwst. That your petitioner is the district attorney of the County of Second. That on or about the day of 189 , one a resident of died leaving a last wiU and testament, which was duly admitted to probate on the day of .... .... 189 , (or, intestate) and letters testamentary (or, of administraUon) were duly issued to upon the day of 189 , (or, that no letters testa/memta/ry or of adnrniist/ration heme ieen issued on smd estate), and that the postoffice addresses of the said is (or, are) as follows : Third. That said decedent died seized or possessed of property within this state or subject to its laws of the value of $500 or over ; and that the same or some portion thereof is subject to the tax imposed by Article X. of the Tax Law, as amended, in relation to Taxable Transfers. Fowrth. That the treasurer of the county of (or, the State corrvptroller) has notified your petitioner in writing, of the refusal or neglect of the persons interested in said property and who are liable to pay said tax, to pay the same, and that no part of said tax has been paid. Fifth. That the following are all the persons interested in said estate and who are entitled to notice of these 164 FORMS. proceedings, including the county treasurer of. county and tlie State corwptroller. "Wherefore your petitioner prays that a citation issue herein to the above-named persons to appear before this court on a day to be designated therein and show cause Tvhy the said tax should not be paid. Dated, the day of 189 . District Attorney of Cowrvty. State of New York, ) County of ■ss. : being duly sworn, says that he has read the foregoing petition and knows the contents thereof, and that the same is true of his own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters he believes it to be true. Sworn to before me, this ) day of 189 . ) FORMS. 165 No. 11. OEDEE FOE CITATION. (Ante, § 235.) At a Surrogate's Court, held in and for the County of at the Surro- gate's office in the of . . N. Y., on the day of. 189 . Present — Hon Arrogate. In the Matter of the Estate of Deceased. On reading and filing the petition of , dis- trict attorney of the County of it is Ordered, That a citation issue to the persons named in said petition, returnable the day of 189 , at o'clock in the noon, requiring them to show cause why a tax should not be paid upon the prop- erty of the above-named decedent pursuant to the pro- visions of Article X. of the Tax Law, as amended, in rela- tion to Taxable Transfers. Swrrogate. 166 JFOiiMS. No. 12. CITATION. (Ante, § 235.) The People of the State of New York, by the Grace of Ood free and indejpendent, to send greebmg : You and each of you are hereby cited and required personally to be and appear before our Surrogate of the County of , at the Surrogate's Court in the of ]Sr. Y., on the day of 189 , at o'clock in the noon of that day, then and there to show cause why a tax should not be paid upon the transfer of the property of ,deceased, in accordance with the provisions of Article X. of the Tax Law, as amended, in relation to Taxable Transfers. And such of you as are under the age of twenty-one years, are required to appear by your guardian, if you have one, or if you have none to appear and apply for one to be appointed, or in the event of your neglect or failure to do so a guardian will be appointed by the Surrogate to represent and act for you in the proceeding. FORMS. 1&7 In Tbstimohy "Whebeof we have caused the seal of our said Surrogate's Court to be hereunto affixed. I L. 8.] WrrNEss, Hon. ... , Surrogate of said County, at the of , the day of , in the year of our Lord one thousand eight hundred and ninety Sv/rrogate, (or, Clerk of the Surrogate's CovH^ 168 FORMS, No. IS. AFFIDAVIT TO BE FILED WITH APPLICATION FOE LETTEES OF ADMINISTEATION. (Ante, § 238.) Suerogate's Cotjet CoirariT. In the Matter of the Application for Letters of Administration upon the Estate of Deceased. County of , ss. being duly sworn, says : h the petitioner herein. That the above named decedent died at the of on the day of 189 . The estimated value of the real property in this state, and of which decedent died seized, is .... dollars, subject to mortgage incumbrance of dollars. The estimated value of the personal property of which said deceased died possessed, is dollars. FORMS. 169 The names of the SsbSd, heirs-at-law, and next of kin, of said decedent, their places of residence and relation- ship to the decedent, are as follows : ^^^°^ HEIKS-AT-LAW AND NEXT OF KIN. Name. PostoflSce Address. Relationship. Sworn to before me this . day of .189 I- 170 FORMS. No. 14. AFFIDAYIT TO BE FILED WITH APPLICATION FOR LETTERS TESTAMENTARY. (Ante, § 238.) StTEEOGATe's CoUET, OOTINTT. In the Matter of the Application for Letters Testamentary upon the Estate of Deceased. County of ss. being duly sworn, says : he the petitioner herein. That the above named decedent died at the . . . of on the day of . . 189 , The estimated value of the real property in this State, of which said decedent died seized, is , . dollars, subject to mortgage incumbrance of dollars. The estimated value of the personal property of which said deceased died possessed, is dollars. FORMS. 171 That the following is a full and correct list of the names, residences and relationship to decedent of aU persons who are entitled to a legacy or devise under the will of said decedent, or by reason of partial intestacy, together with the character and value of such legacy or devise as far as the same can at present be determined. Names. Postoffice Address. Relationship. Value. Sworn to before me this . day of .189 . INDEX TO CASES CITED. PAGE. Amherst College v. Ritch 112 Association v. Mayor 53 Burgess v. Salmon 137 Catlin w. Trustees Trinity College 50, 51 Church V. People 50 Church of the Transfiguration v. Niles 60 Church of St. Monica v. Mayor, etc 44 Clapp V. Mason 136 De Barry v. Souer 135 Duvall V. Eng. E. L. Church i4i Fidelity, etc. Co. v. McClain 135 Foster v. Lay 136 Fraser ». People 94, 118 Hellman v. U. S 141 Hebrew Orphan Asylum v. Mayor S3 Knowlton v. Moore 132, 133, 134 Mason v. Sergeant 136 Matter of Abbett 24 Matter of Ar-nett 49, 105 Matter of Astor 94, 97, 98, 99, loi Matter of Balleis 60 174 TABLE OF CASES CITED. FAGE. Matter of Bartlett loo Matter of Bartow SS> 59 Matter of Beach 6i Matter of Becker 43, i°9 Matter of Bentley 22, 80 Matter of Berry 41 Matter of Bird 16, 57, 62, 100 Matter of Birdsall 26, 61 Matter of Black 16 Matter of Bliss 37 Matter of Board of Foreign Missions 54 Matter of Bogart 44, 106 Matter of Borup 28 Matter of Bostwick ...24, 28 Matter of Brandreth 26, 43 Matter of Bronson 22 Matter of Brooks 9 Matter of Brundage 9, 39, 98, 108 Matter of Burr 19, 23 Matter of Butler 62 Matter of Cager 9, 32, 37, 59 Matter of Capron ., ..». 61, 62 Matter of Chabot 20, 30, 35 Matter of Chardavoyne 8 Matter of Chesebrough 15, 23 Matter of Clark 23, 33 Matter of Coggswell 20 Matter of Coogan 72 Matter of Corbett 57 Matter of Craig 16 Matter of Crary 25, 43 Matter of Crerar 21, 22, 72, in Matter of Crosby 100 Matter of Cruger 32 TABLE OF CASES CITED. 175 ^ PAGE. Matter of Cullom i? Matter of Curtis i?, 33. 43. S^) 57 Matter of Daly loi Matter of Davis 37 38, 66, 79, 107 Matter of DeGraaf.: 4^.57. 66 Matter of Edson 20 Matter of Eldridge 3^ Matter of Embury 8, 19, 77, 80 Matter of Enston 10, 22 Matter of Farley 58, ^5 Matter of Fay 20 Matter of Fayerweather 8, 10, 66 Matter of Fisch 61, 62 Matter of Fitch 21, 78 Matter of Forrester 51 Matter of Forsythe 29 Matter of Fuller, 87 Matter of Fulton 107 Matter of Gihon 43 Matter of Gould iS, 39. 43. 74, 99 Matter of Greene 26, 28, 31, iii Matter of Hacket 65, 107 Matter of Hall 23, 37, 71 Matter of Hamilton 51 Matter of Harbeck 10, 29, 35 Matter of Hathaway 78 Matter of Havemeyer 20 Matter of Hendricks 9, 31, loi Matter of Herr 52, 53 Matter of Hoffman 16, 32 36, 119 Matter of Hopkins 33, 37 176 TABLE OF CASES CITED. PAGE. Matter of Houdayer 23 Matter of Howard 71 Matter of Howe 8, 37 Matter of Howell 15, 50, 53, 126 Matter of Hubbard 24, 69 Matter of Hunter 50 Matter of Irish 43 Matter of James 23 Matter of Johnson ..,..,, 100 Matter of Jones 37, 54, 99, 101 Matter of Kavanagh 16, 100 Matter of Kech 54 Matter of Keenan 79, 98 Matter of Keith 54 Matter of Kelley 60, 77 Matter of Kemeys 9, 59 Matter of Kene 16 Matter of Kennedy 19, 41 Matter of Kimberly 55 Matter of King 18, 40 Matter of Knoedler 16 Matter of Langdon 30 Matter of Lange 44 Matter of Lansing no, in Matter of Leavitt 33, 100 Matter of Le Fever 33 Matter of Lenox 53 Matter of Livingston 14, 41 Matter of Lorrilard 20 Matter of Ludlow 99 Matter of Masury 19, aj TABLE OF CASES CITED. 177 FAGB. Matter of McCarthy 119 Matter of McCoskey 51 Matter of McCready 37 Matter of McGarvey 58 Matter of McMahon 30 Matter of McPberson 8, 96 Matter of Merriam 17 Matter of Miller 9, Si. 57, S9i ^°^ Matter of Milne 8, 9, 67 Matter of Mills 17 Matter of Millward , 38, 99 Matter of Moore 9, 44, 57, 61, 62, 67 Matter of Morgan 22 Matter of Moulton 62 Matter of Murphy 60 Matter of Neale 52 Matter of Nichols 61 Matter of Niven no Matter of O'Donohue 80 Matter of Ogsbury 30 Matter of Offerman 14, 23, 41 Matter of Park 71 Matter of Peck 16 Matter of Pelton 79 Matter of Phipps 22 Matter of Piatt 66 Matter of Plummer 15 Matter of Post 98 Matter of Potter 8, 34 Matter of Prime 8, 9, 5 1, 54 Matter of Prout 79 Matter of Pullman 21, 40 Matter of Purdy 40 17^ TABLE OF CASES CITED. PAGE. Matter of Ray 58. 67 Matter of Rice , 39, ii» Matter of Romaine 23 Matter of Roosevelt 9, 33 Matter of Ryan 9, 59 Matter of Se-aman 29 Matter of Schermerhorn 72 Matter of Sherar 72 Matter of Sherman 15, 30, 51, 126 Matter of Sherwell. 16 Matter of Sloane &> 37i 38, 95, 97, 99 Matter of Smith-. 10, 37, 57, 60, 100, loi, 109, in Matter of Sondheim 80, 113 Matter of Spencer 61, 62 Matter of Spaulding 27 Matter of Sterling 9, 37 Matter of Stewart 32 Matter of Stiger 16 Matter of Sutton 14, 20, 23, 38, loo Matter of Surrogate of Cayuga County 59 Matter; of Sweetland 62 Matter of Swift 14, 15, 20, 102 Matter of Taylor 37, 60 Matter of Thomas 17, 21, 62 Matter of Thompson 81 Matter of Thorne 26, 28, 112 Matter of Thrall 54 Matter of Travis 19 Matter of Tucker 44 Matter of Tulane „ 23 Matter of Twig 100 Matter of Ullman y^ Matter of Underhill 52 TABLE OF CASES CITED. 179 PAGE. Matter of Vanderbilt lo, 34, 54, 65 Matter of Van Kleeck 9, 51 Matter of Vassar 10, 37, 51 94 Matter of Vinot 23, 30 Matter of Wallace 72, loi Matter of Warrimer ^ 9 Matter of Weed 37, 38 Matter of Wescott 33 Matter of Westurn 16, 39, 42, 81, 94, 100, 107, 108, 109 Matter of Wheeler 20, 62, 73 Matter of Whiting 21, 22 Matter of Winters 97 Matter of Wolfe 9, 17, 94, 106, 118 Matter of Wbolsey 57 Matter of Wormser , , . , , 18, 39, 40, 42, 66, 107 May V. Slack 14^ McVean v. Sheldon 37 Minnesota v. Central Trust Co 142 Morgan v. Cowie 107, 108 Morgan v. Warner 42, 98, 105, 106 Murdock v. Ward 134 Opinion of Attorney General (1886) 100, 102 Opinion of Deputy Comptroller (1891) 100 Page V. Rives 136 People V. Commissioners S3 People ex rel. Catholic Union v. Sayles S3 People ex rel. Medical Society of Kings County v. Neff . S3 People ex rel. Salvation Army v. Feitner 53 People ex rel. Twenty-third St. R. R. Co. v. Commis- sioners of Taxes 44 People ex rel. Young Men's Association v. Sayles s^ People V. Prout . . 67 People V. Purdy 52 l8o TABLE OF CASES CITED. PAGE. Plummer v, Coler i6 Ruckgaber v. Moore 13S Scholey v. Rew 132 Sherman ». U. S 134 Sturges z/. U. S 136 Tallmadge v. Seaman 29 Turner v. Martin 136 U. S. w. Allen 141 U. S. V. Brice 136 U. S. t. Hazard 136 U. S. 7J. Hunnewell 136 U. S. V. Kelly 136 U. S. V. Leverich 135 U. S. z;. L. I. & T. Co 136 U. S. V. Morris 136 U. S. V. Rankin 136 U. S. V. Tappan 141 U. S. V. Townsend 141 U. S. V. Truck 141 U. S. V. Watts 136 Warner v. People 59 Weston V. Goodrich 77 Wright V. Blakeslee 141 INDEX. A Act: ■■*<;= chap. 173 of 1901, when takes eflFect 126 each successive, a continuation 8 effect of prior 59 estates vested prior to, not taxable 19 of 1892 and of 1896, when taking effect 8 of 1892, purpose of 37 of 1891, how operative 9 of 1897, declared constitutional 8 original, taxing legacies, etc., when passed 7 declared constitutional 8 how affected by Act of 1896 9 not contract between State and transferrer 10 not repealed in 1887 9 reference to " this Act," how applied 8 when took effect 8 when repealed 8 Action: to recover illegal tax 134 Adjudication: exempting legacies, when a bar 118 final as to property unless appeal taken 110 former, how affects property not disclosed Ill Administrators: collection of tax by, sec. 224 67 personally liable for payment of tax 63 l82 INDEX. Adopted Children: ^'^"^ children of, not entitled to exemption 57 exemption of, sec. 221 55 Affidavit: To Be Filed With Application: for letters of administration, form of 168 for letters testamentary, form of 170 AgFeement: property transferred on agreement for support, when tax- able 28 Albany County: transfer tax assistant in, and salary of 115 Amendment: effect of various amendments 8 of 1887, not retroactive 9 of 1890, not retroactive 9 of 1897 (sub-d. 5, see. 220), object of 34 to sub-division 5 of see. 220, constitutional 33 Ancillary Letters: petition for, what to contain, sec. 229 76 Annuity: how computed 100 value of future or limited, how determined 83, 89 Appeal: costs to comptroller upon 119 grounds of, must be stated 107 only remedy for correction of prior illegal errors 107 proceedings of surrogate on 106 refund after time has expired 72 surrogate's power upon, generally 108 who may 105 Application: of tax, sec. 241 124 of War Revenue Law to District of Columbia 132 INDEX. 183 Appointment: page exercise of power of % ,, 33 of appraisers, etc^ sec. 230 ^ . . . > 81 when appraiser should be appointed 94 of property by life tenant, when taxable 34 property subject to power of, when taxable 35 Appraisal: amount of commissions not certainly ascertained 74 as to new appraisal on application of comptroller 110 or order of surrogate. ^ 110 of cash legacies, not necessary 99 of notes, how made 42, 100 of annuities 100 not prevented by discharge of foreign executors 24 postponement of, when 99 proceedings on second 109 Appraiser: appointment of, etc., sec. 230 81 appraise property in more than one county 98 cannot remit penalty 66 cannot take evidence regarding debts and expenses 99 fees of, how paid 102 form of bill of 157 petition for appointment of 143 form of report of ... 1 151 form of subpoena of 150 how paid 95 method of procedure 97 must report whole value of each legacy 99 powers of before 1892 98 proceedings by, sec. 231 95 report of, what to contain 101 report of, in duplicate, sec. 232 102 report of, set aside unless notice to heir 97 salaries of, in various counties 81 should report service of notice 97 should not report on exemptions 101 State bound by acts and conclusions of, when 101 1 84 INDEX. Appraiser. — Continued. ''*<5b when appointed of surrogate's own motion 80 when guilty of misdemeanor 94 when to be appointed 94 Article I: Of Tax Law: exemptions in, not applicable, sec. 243 126 Assistants: surrogate's, in Kings and other counties, sec. 234 113 surrogate's, in New York Co., see. 233 112 B Bank, Etc.: for deposit of taxes, sec. 240a 123 not to transfer assets of estate without notice to comp- troller 75 Basis: of value for taxation 36 Beneficiary residence of, immaterial 28 Bequests: of $500, when taxable 16 in lieu of commissions, tax upon, sec. 227 74 in trust for masses, when taxable ' 16 to United States taxable 17 Bonds: apportionment of debts concerning exempt 40 of non-resident, when taxable 21 of U. S., when taxable 15 of U. S. not exempt from war revenue 134 of U. S. exempted from valuation in fixing tax 125 of foreign corporations, when taxable 22 pledged for a loan, when not taxable 20, 21 to be given for deferred payment of tax 73 INDEX. 185 Books: PAGE and torms, how furnished, sec. 238 120 C Charity: exemption for 54 Citation: form of 166 Claim: in iitlgation to be deducted 42 pretended, not deductible 41 Collection: of tax by executors, etc., see. 224 67 of tax by foreign executors 69 of tax proceedings for, sec. 235 115 of War Revenue Tax, sec. 30 137 Commissions: not ascertained with certainty in appraising 74 not to be ascertained with certainty in determining value . . 39 tax upon devise or bequest in lieu of, sec. 227 74 when to be deducted 109 Commissioner of Internal Revenue: to appoint special agents, when 140 Competency: of witness under see. 829 of Civil Code 98 Composition: of transfer tax upon certain estates, sec. 230a 87 Compromise: of pretended claim not deductible 41 of tax by comptroller, when 118 l86 INDEX. Comptroller: '■*°' defined, sec. 242 ....>..* 125 entitled to notice 94 must specify grounds of appeal 107 receipt from, see. 236 119 report of State, sec. 240a 12S State, to furnish books and forms, sec. 23S 120 when allowed costs 119 when may appeal 105 when may apply for new appraisal 110 Contingent: estate, when taxable 32, 83 Constitutional: aifirmance of judgment sustaining War Revenue Act, when may be had 135 amendment to sub-d. 5 of see. 220 33 Chap. 284, Laws 1897 8 Chap. 173, Laws 1901, how far '87 original Act declared 8 progressive rate feature of War Revenue Tax 133 right to due process invaded unless notice to taxpayer 96 uniformity, as applied to War Revenue Tax, defined 133 Construction: of sub-d. 4, see. 220 29 Conversion: effect of equitable, in will 20 doctrine of equitable, not invoked to exempt from tax 55 Co-partnership: agreement between co-partners construed, and taxable 18 interest of decedent in, when taxable and how ascertained. . 17 when tax on testator's interest in 73 Corporations: liability to tax of certain, sec. 228 74 bequests to municipal gi exemption of religious, educational, etc 56 exemption of 51 INDEX. 187 Costs: PAGE not allowed. to guardian of infant owner of remainder 98 taxation of, how provided for 119 when allowed to comptroller 119 when not allowed against executors 118 County Clerk: report of, sec. 239 121 County Treasurer: defined, see. 242 125 fees of, see. 237 120 report of, sec. 240 122 receipt from, sec. 236 119 to pay taxes to State Treasurer 123 when to act as appraiser 82 Courts: without general powers in tax proceedings 10 D Death: increase after, not taxable 37 occurring prior to original Act, transfer thereafter not tax- able 30 value of property transferred as of time of 37 War Revenue Tax accrues upon 141 Debts: apportionment of, between exempt and non-exempt property, 40 compromise of pretended, not deductible 41 contracted for real estate, when deducted 40 doubtful deductions to be rejected 39 due non-residents, when taxable 22 of deceased member of co-partnership, when and how de- ducted 17 real estate mortgage not deducted 40 to be deducted in ascertaining the market value 38, 39 when to be deducted 109 surrogate must deduct 99 1 88 INDEX. Deductions: ''*<=^ of claim in litigation 42 of foreign executor's commissions 41 of mortgage debt, when 40 of pretended claim 41 of War Revenue Tax by executor 141 surrogate must make 99 what to be made 109 Deferred Payment: sec. 226 72 bond for 73 Definitions: by sec. 242 125 of constitutional uniformity respecting War Revenue Law. . 133 Deposit: of non-resident, when taxable 23 to credit of partition suit to which deceased a party, not exempt 16 of taxes by State Comptroller, sec. 240a 123 Determination: of surrogate, sec. 232 102 how far conclusive 112 Devise: in lieu of commissions, tax upon, sec. 227 74 Discharge: of foreign executors cannot prevent appraisal 24 Discount: interest and penalty, sec. 223 65 District Attorney: defined, see. 242 125 proceedings by, to collect tax 118 when may appeal from surrogate's decision 105 form for petition of 162 INDEX. 189 District of Columbia: •'a°= application of War Revenue Law to 132 Distributive Share: appraiser must report whole value of 99 in estate of deceased sister in foreign state, not taxable. ... 20 in real estate, when taxable 17 War Revenue Tax upon, see. 29 129 Duty: War Revenue Tax a 132 E Effect: of prior acts 59 Equitable Conversion: doctrine of, not invoked for exemption 55 in will, effect of 20 Equity of Redemption: not taxable, although conversion established 20 Erie County: transfer tax assistant in, and salary of 115 Estate: composition of transfer tax upon certain, sec. 230a 87 contingent and expectant, when taxable 29, 33 defined, sec. 242 125 definition before Act of 1892 37 foreign, liable to legacy tax 16 in expectancy, etc., when taxable 29, 33 in process of settlement, how taxed 39 value of future or limited, how determined 83, 89 vested prior to act, not taxable 19 War Revenue Tax, on what chargeable 135 igo INDEX. Evidence: ''*°" eontradietory testimony of donee' not construed most favor- able to State 26 of executor as to declarations of testator as to value 98 on appeal surrogate may take new 80 right to impose tax must rest upon 26 Exceptions and Limitations: sec. 221, Tax Law u5 Excise: War Revenue Tax an 132 Executors: collection of tax by, sec. 224 61 collection of tax by foreign 69 cannot testify as to declarations of testator as to value .... 98 liability of, for tax 64 must apply for appraisement 94 War Revenue Tax to be paid by 141 when conclusion of, may be considered 98 Exemption 44:-55 $500 not exempt 16 bequest of $500, payable in one year, exempt 16 equity in devised lands less than $500 exempt 16 for charity 54 from War Revenue Tax 131 in Article I, not applicable, sec. 243 126 institutions exempt 53 institutions not exempt 54 legacy to husband of daughter, when exempt 57 of municipal corporations 54 of U. S. bonds in fixing tax 125 sec. 4 of Tax Law 44, under sec. 221 59 U. S. bonds not exempt from War Revenue Law 134 parol trust, when proven and property exempted 58 Expectant: estate, when taxable 32 INDEX. 191 Expense: cage deQe.d.eRt's proportiouate share of, in litigation deducted in ascertaining value , 39 of successful contestants of will, not deducted in ascertain- ing market value 39 of transfer ta? assistants, how payable 115 when to be deducted 109 F Fees: of appraiser, how paid 102 of county treasurer, sec. 237 120 Final Adjudication; as to taxable property, when 110 Five Hundred Dollars: equity in lands devised less than $500, exempt 16 legacy of, subject to taxation 16 payable in one year, not taxable 16 shares of collateral relatives aggregating, taxable 37 when taxable 16 Foreign Corporations: bonds of, when taxable 22 devised to, when taxable 17 stock in, owned by non-resident decedent not taxable 23 stocks of, when taxable 17 Foreign Executors: collection of tax by 69 deduction of commission of 41 discharge of, cannot prevent appraisal 24 Former Adjudication: when does not suspend tax of personalty Ill Forms: and books, how furnished, see. 238 120 affidavit to be filed with application: for letters of administration 168 192 INDEX. Forms. — Continued. '■*™ for letters testamentary 170 appraiser's bill 157 appraiser's subpcena 150 citation 166 notice of appraisal 148 notice of tax 161 notice to superintendent of insurance 158 order appointing appraiser 146 order assessing tax 159 order for citation 165 petition for appointment of appraiser 143 petition of District Attorney 162 report of appraiser 151 G Gratuity Fund: proceeds from, in produce exchange, not taxable 20 Gifts: inter vwos, when 25 tax not dependent on time of enjoyment of 28 I Income: must pay tax on life estate 100 value of future or limited, how determined 83, 89 Index to Cases Cited 173 Institutions: when exempt 53 when not exempt 54 Insurance: valuation of life policies ■- 90 Interest: discount and penalty, sec. 223 65 from what time charged 66 value of future or limited, how determined 83, 89 what rate governs 66, 67 INDEX. 193 J Jurisdiction: pag" by surrogate of new question not specified in appeal 107 of surrogate, see. 229 76 of surrogate in New York County 80 K Kings County: surrogate's assistants in, sec. 234 113 L Laws Repealed 126 Legacy: appraiser must report whole Talue of 99 chargeable on real estate, when not taxable 20 due non-resident, when taxable 22 equity in devised lands less than $500, exempt 16 impressed with trust, when not taxable 20 in trust for masses, when taxable 16 of $500 subject to taxation 16 of $500, payable in one year, not taxable 16 of $10,000 to wife, when taxable 57 property applicable to payment of, taxable 38 to husband of daughter, when exempt 57 to U. S. taxable 17 War Revenue Tax upon, sec. 29 129 War Revenue Tax, to what applies 135 War Revenue Tax a lien upon, sec. 30 137 War Revenue Tax deducted from 141 Legatee: when not required to pay transfer tax 20 Liability: of certain corporations to tax, sec. 228 74 of executor, etc., for tax 64 13 194 INDEX. Lien: ^'^'^^ of taxes and payment thereof 63 sec. 222 63 War Revenue Tax prior 142 Life Estate: tax on, paid from income 100 Life Insurance: policies of, held by testator, when subject to tax 16 upon life of non-resident, when not taxable 24 Limitations: and exceptions 55 of time applicable to refund. 72 statutes of, not applicable 21 Lineal Descendants who are 67 M Metliod: of appraiser's procedure 97 Metliods: of establishing value of inheritance and fixing tax 106 Monroe County: transfer tax assistant in, and salary of 114 Mortality Tables 91 Mortgage: directed to be paid from personalty, not deducted 41 real estate liens, not deducted 40, 100 Municipal Corporations: exemption of 54 Mutually Acknowledged Relation 60-62 children of adopted children 57 INDEX. 195 N New York County: page surrogate's assistants in, see. 233 112 surrogate cannot select appraiser in 113 Non-Resldent Decedent: bonds of foreign corporations owned by, when taxable 22 bank account of, and bond secured by mortgage, when tax- able 23 debts and legacies due, when taxable 22 deposits in savings banks 23 indebtedness to New York creditors, not oiTset 40 insurance upon life of, when not taxable 24 interest in firm doing business in State, when taxable 22 jurisdiction to tax, when unadministered assets shown.-. ... 77 legacy under will of, when not taxable 23 money of, within State taxable 23 payment of tax, how avoided 23 property of, when taxable 21 property passing to, not taxable before 1887 22 taxable since 23 stock in foreign corporations owned by, not taxable 23 Notice: of appraisal, form of 148 of order assessing tax, when unnecessary 106 of tax, form of 161 provided for in order appointing appraiser 97 surrogate to fix length of 97 to superintendent of insurance, form of 158 Oneida County: transfer tax assistant in, and salary of 114 Onondaga County: transfer tax assistant in, and salary of 114 Order: appointing appraiser, form of 146 assessing tax, form of 159 for citation, form of 165 196 INDEX. P Paptnepship ""a^^ agreement between co-partners construed and taxable 18 interest of decedent in, when taxable, and how ascertained. . 17 when tax on testator's interest in 73 Payment: deferred, sec. 226 72 of appraiser's fees 102 of taxes, sec. 222 63 of taxes by State Comptroller, sec. 240a 123 of War Revenue Tax, sec. 30 137 Penalty: appraiser cannot remit 66 basis of application for 66 discount, interest and, sec. 223 63 not relieved from, because of ignorance 66 Petition: by Comptroller, sufficiency of 79 for appointment of appraiser, form of 143 of District Attorney, form of 162 Postponement of Apppaisal 99 Powbp: of appointment, exercise of 33 of disposition to life tenant, non-exercise of 29 of review by Supreme Court Ill when direction not exercised by 29 Ppoeedure: by U. S. to collect legacy tax 141 Ppoeeedings: appraiser's procedure, method of 97 by appraiser, sec. 231 95 for collection of tax, sec. 235 115 of surrogate on appeal 106 INJ3EX. 197 Progressive Rate Feature: page of War Revenue Tax constitutional 133 of War Revenue Law, what affected by 134 Property: assessed soon after death 94 defined, sec. 242 125 what is, within the Act 78 in two counties, how appraised 98 R Rate: of tax 15 Real Estate: debts contracted for, when deducted 40 foreign, not taxable 20 Reappraisal: See Second Appraisal. Reasonable Time: what is, to determine range of market 43 Receipt: from County Treasurer and Comptroller, sec. 236 119 Refund: after time to appeal has expired, when 72 because of legal errors ; 71 how obtained 71 limitation of time applicable 72 of tax erroneously paid, sec. 225 69 power of executor to order 72 who may order 71 Remainders: tax on, paid from principal 100 under trust deed, when taxable, made in contemplation of death, when 31 value of, how determined 44 198 INDEX. Bemainders. — Contirmed. face when cannot be fixed or determined 33 when appraisement of postponed 33 when not subject to tax 15 when taxable 30 Bepealof Laws 126 subsequent, does not release tax 141 Report: of appraiser set aside if appraisement without notice 97 of appraiser should show service of notice 97 not to show exemptions 101 what to contain 101 in duplicate, see. 232 102 form of 151 of County Treasurer, sec. 240 122 of Surrogate and County Clerk, see. 239 121 of State Comptroller, sec. 240a 123 Betroaetive: amendment of 1S87, not 9 1890, not 9 sub-division 4 of section 220, not 29 sec. 230 of Tax Law, not 94 Besidenee: of beneficiary immaterial 28 Beturn: of War Revenue Tax, sec. 30 137 Be view: power of, by Supreme Court HI S Safe Deposit Co: when not to transfer assets of estate 75 INDEX. 199 Salary: page of investigator as to legacy tax under War Revenue Law. . . 140 of surrogate's assistants in New York County 112 Kings County 113 other counties 114 of transfer tax assistants, how payable 115 Second Appraisal: interest of non-resident in firm, when taxable upon 22 proceedings upon 109 Sections of Tax Law: sec. 4 44 exemptions under, not applicable 126 sec. 220 12 221 55 222 63 223 65 224 67 225 69 226 72 227 , 74 228 74 229 76 230 81 provision of, not retroactive 94 230a 87 231 95 232 102 not exclusive 105 233 112 234 113 235 115 2.36 119 237 120 2.38 120 239 121 240 122 240a 123 241 124 242 125 243 126 200 INDEX. Secretary of the Treasury: ^°« to appoint investigator for purpose of legacy tax 140 Special Guardian: of infant owning remainder need not be appointed 98 State: power to tax and to fix time 10 State Comptroller: books and forms to be furnished by, sec. 238 120 deposit of taxes by, see. 240a 123 make verified return of taxes 124 payment of taxes by 123 report of, sec. 240a 123 reports transmitted to, see. 239 121 sec. 240 .' 123 to prescribe form of county treasurer's report. 123 State Treasurer: to receive all taxes 123 Statute: War Revenue Law, how construed 13^ J Stenographer: appointment of, etc., sec. 230 81 salary of, in various counties 81 Stocks: of foreign corporations, when taxable 17 of non-resident, when taxable 21, 22 pledged for a loan, when not taxable .20, 21 transferred without consideration inter vivos, when taxable, 26 value, how (Jetermined 42 when property within the State 78 Stock Exchange: proceeds of sale of seat in, taxable 17 INDEX. 20I in: fAGE under foreign laws not taxed here 19 under wiir effectual before Transfer Tax Law, not taxable. . 34 tax upon right' of ^ 15 Suffolk County: transfer tax assistant in, and salary of 114 Superintendent of Insurance: to determine value of future or contingent estate, etc., sec. 232 102 Supreme Court: power of review Ill Surrogate: assistants in Kings and other counties, sec. 234 113 New York County, sec. 233 112 cannot select appraiser in New York County 113 determination of, sec. 232 102 determination by, how far conclusive 112 has sole jurisdiction 77 in New York County, jurisdiction of 80 jurisdiction of, sec. 229 76 jurisdiction of new question not specified in appeal 107 may refuse submission of additional papers, when 107 must deduct debts 99 power of, on appeal 108 power of, to order refund 72 proceedings on appeal 106 report of, sec. 239 121 when cannot order further appraisal 110 when may permit ex parte, appraiser to be appointed 107 when may set aside decree after sixty days 101 T Table pj Ca^eis Cited in Notes 173 Tables of Mortality 91 202 INDEX. Tax: ■"*" action to recover illegal 134 amount of, how measured 16 application of, sec. 241 124 collection of, by executor, etc., sec. 224 67 collection of, by foreign executors 69 composition of transfer, upon certain estates, sec. 230a 87 erroneously paid, refund of, see. 225 69 imposed as of testator's death 14 laws imposing, how construed 10 legatee not liable for 141 levied subsequent to decedent's death, deducted in ascertain- ing value 39 liability of certain corporations to, sec. 228 74 lien and payment of 63 not dependent upon time of enjoyment of gift 28 not levied unless transfer of interest 15 on life estate paid from income 100 on remainder paid from principal 100 on transfer controlled by what statute 97 payment of, by State Comptroller, sec. 240a 123 proceedings for collection of, sec. 235 115 refund of, because of illegal errors 71 remainders, not subject to, when 15 right of 14 transfer tax paid in foreign states 19 upon devise, etc., in lieu of commissions, sec. 227 74 upon personal property wherever situate 14 upon transfer, special not general 10 War Revenue, a prior lien 142 \/ar Revenue accrues, when 141 War Revenue, a duty or excise 132 War Revenue, how returned, etc., sec. 30 137 War Revenue, imposed upon transmission 132 War Revenue, not to be deducted 43 War Revenue, paid by executor 141 when assessed as to testator's interest in partnership 73 when not ascertainable 35 who may order refunding 71 INDEX. 203 Taxable Persons: page all mentioned in see. 221 are 57 Taxable Transfers: composition of transfer tax upon certain estates, sec. 230a. . 87 law of, since Act of 1892, how construed 36 right of succession taxed 10 sec. 220 of Tax Law 12 sub-d. 4, estates in expectancy 29 5, exercise of power of appointment 33 what law governs 9 Taxpayer: entitled to notice 96 laws construed favorable to 10 Ten Thousand Dollars: aggregate of transfers exempt 57' legacy of, to wife, when taxable 57 Transfer: aggregate of $10,000 57 defined, sec. 242 125 in contemplation of death 25, 58 meaning of 14 not taxable, death occurring before original Act 30 tax law, how enforced 79 War Revenue Tax imposed upon 132 will giving power of disposition not exercised, when tax- able 29 Transmission: War Revenue Tax imposed upon 132 Trust: revocable when created and taxable SQ Trust Deed: disclosing gift to take eflFect on grantor's death, when 27 interest under, when taxable 18 not contingent upon death of donor, when 25 to decedent for life ; remainder, when taxable 31 when next of kin take remainder under, liable to tax 32 204 INDEX. Trustees: ^^^^ collection of tax by, sec. 224 67 U Ulster County: transfer tax assistant in, and ^alary of 114 U. S. Bonds: exempted from valuation in fixing tax 125 not exempted from War Revenue Act 134 transfer of, when taxable 15 V Value: for taxation as of time of decedent's death 37 market, how determined 43 of future or limited estates, etc., how determined 83, 89 how determined before 1887 112 of property subject to tax, how and when ascertained 36 of life policies, how ascertained 90 of remainder, how determined 44 of stocks, how determined 42 time of ascertaining, when transferee not known 38 w War Revenue Tax: a lien, sec. 30 137 a prior lien 142 law, how construed 135 law of 1898 129 legatee not liable for 141 not affected by difference between laws of states 133 not to be deducted 42, 109 on what estates chargeable 135 progressive rate feature of, constitutional 133 what affected by progressive rate feature 134 Westchester Couijty: transfer tax assistant in, and salary of 114 Witness: competency of, under sec. 829 of Civil Cpde 98 Collier's Civil Service Law Of the State of New York, by Wm. Miller Collier, President of the' New York Civil Service Commission, author of ^^ Collier on.'- Bankruptcy " editor ^'' American Bankruptcy Reports" etc. Bound in Law Buckram. Price, $4.50 «f^. A treatise upon the law as to appointments to office, removals from office, and tenure in office, as embodied in the New York Civil Service and the " Veteran " Laws, with Annotations, Forms, Rules and Regulations. LawyfeFS, the vast army of public officers and public employees whose powers, rights and duties are measured and determined by the Civil Service Law, will find this treatise of invaluable service to them in construing and applying and enforcing the provisions of that law. Appointing Offlcers need to familiarize themselves with its provisions, in ofder to ascertain the limits of their p'dwers, because a transgression of those limits renders them person- ally LIABLE for the compensation of persons appointed by them. Disbursing^ and auditing officers must satisfy them- selves that appointments have been made pursuant to the Civil Service Law and Rules, for a payment by them of com- pensation to one who does not bring a certificate of the Civil Service Commission to this effect, is a waste of public funds, and is recoverable from them and their sureties. Collier on Bankruptcy. Third Edition. This new third edition is more than a year later than any other work on the subject. When the original edition was published there was no decisions under the Act of 1898. This edition is the only treatise that gives them all. It is pre-eminently the leading work, having been commended and cited by all the Fede- ral Courts. Law sheep. Price, %6.^o delivered. Judge ADDISON BROWN, U. S. District Court. " The third edition of Collier's excellent work on the Bankruptcy Act of 1898, supplies a want very greatly needed. 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This new edition has been completely revised, entirely rewritten and new chapters added. This standard and popular work, together with '■'■Special Actions," make the best work on practice for New York State, on any of the seventy-four chapters covered. Two large volumes, law sheep. Price, $12.50. CHAPTER HEADINGS. I. Special proceedings generally considered. II. State writs. III. Writs of habeas corpus to brin^ up a person to testify. IV. Writ of habeas corpus and writ of certiorari to inquire into the cause of detention. V. Mandamus. VI. Prohibition. VII. Writ of assessment of damages. VIII. Writ of certiorari. IX. Discharge of insolvent debtor from his debts. X. Exemption from arrest or discharge from imprisonment of an insolvent debtor. XI. Discharge of an imprisoned debtor from imprisonment. XII. Care of the property of a person confined for crime. XIII. Summary proceedings to recover possession of land. XIV. Civil contempt. XV. Criminal and legislative contempts. XVI. Proceedings to collect a line. XVII. Proceedings to discover death of tenant for life. XVIII. Proceedings for the appointment of committee of the person and prop- erty of a lunatic, idiot or habitual drunkard. General powers and duties of the committee. XIX. Proceedings for the disposition of the real property of an infant, lunatic, idiot or habitual drunkard. XX. Arbitrations. XXI. Foreclosure by advertisement. XXII. Proceedings to change name of individual or corporation. XXIII. Proceedings for voluntary dissolution of a corporation. XXIV. Proceedings supplementary to execution against property. XXV. Proceedings to compel delivery of books to a public officer. XXVI. Proceedings for the condemnation of real property. XXVII. Proceedings for sale of corporate real estate. XXVIII. Admission of attorneys. XXIX. Court of Claims. XXX. Discharge of mortgages of record in certain cases. XXXI. Resignation or removal of trustees and appointment of successor. XXXII. Proceedings under election law. XXXIII. Proceedings under tax law. XXXIV. National bankruptcy law. XXXV. General assignments. XXXVI. Investigation of expenditures of towns and villages. XXXVII. Adoption of children. XXXVIII. Proceedings to compel attorney to pay over moneys. XXXIX. Disbarment of attorneys. Fiero on Special Actions, Second Edition. By J. Newton Fiero, Dean of the Albany Law School, This splendid treatise is the recognized authority of Practice in New York State Under the sections of the Code which it covers. In this edition Mr, Fiero has revised and rewritten, line by line, the entire work, bringing it down to date. All the decisions down to the present time have been cited and digested. The Forms have received special attention, and the collection is the most cow^plete and authoritative to be found. Two large octavo volumes of i ,644 pages, printed and bound in the best law book style. Price $12.00. CHAPTER HEADINGS. I. i^ectment. II. Partition. III. Dower. IV. Foreclosure. V. Determination of a claim to real property. Action to comnel VI. Waste. VII. Nuisance. VIII. Reversioners and joint tenants, Action by. IX. Cutting trees or timber and when treble damages allowed. X. Notice of pendency of action. XI. Judgment for and sale of real estate. XJI. Miscellaneous provisions relating to real estate actions. XIII. Mechanic's lien.' XIV. Replevin. XV. Foreclose alien upon a chattel, Action to. XVI. Annul a void or voidable marriage, Action to. XVII. Divorbe. XVIII. Separ^ition. XIX. Proyisiqns applicable to nullity, divorce alid separation. XX. Actions relatmg to a corporation. XXI. Receivers. XXII. Action by or against an executor or administrator. XXIII. Action by a creditor against his debtor's next of kin, etc. XXIV. Action to establish or impeach a will. XXV. General and miscellaneous provisions relating to estates. XXVI. Judgment creditor's action. XXVII. Action by private person upon an official bond. XXVIII. Aciion by private person for a penalty or forfeiture. XXIX. Certain actions to recover damages for wrongs. XXX. Miscellaneous actions and rights of action. XXXI. Actions by or against an unincorporated association. XXXII. Actions by or against certain county, townand municipal officers. XXXIII. Actions and rights of action by and between joint debtors. XXXIV. Action against usurper of an office or franchise. XXXV. Miscellaneous actions on behalf of the people. American Electrical Cases. Reporting the State and Federal cases since 1873, relating to the Electric Railway, Electric Light and Power, Telephone, Tele- graph, and all practical uses of electricity. Seven large vol- umes. Price, $42.00. The importance of keeping in touch with the growth and develop- ment of the law of electricity can hardly be over-estimated, and the lawyer in general practice desiring to keep abreast of the times cannot afford to be without the "American Electrical Cases." — Ohio Legal News. These reports are of the greatest value to every lawyer of the present age of electricity. The wide scope of these volumes makes them of unusual merit. — Albany Law Journal. * * * This is the most important addition to legal literature on a subject of great and growing importance. * « * The subject of electricity has already provoked much litigation, which will necessarily increase as the uses of electricity become more general, so that the importance of having the collected cases, as above, becomes at once apparent. — Western Reserve Law Journal. I have given Vol. I "American Electrical Cases" a careful examina- tion, and as a result of my examination heartily commend it to the bench and bar. — Hon. Byron K. Elliott {late Chief Justice of the Supreme Court of Indiana) in Law Book News. Nowhere else can one find the law of the telegraph and the street railway so conveniently set forth. — Harvard Law Review. This is the most valuable series of cases for active lawyers that has appeared within recent years. So long as the telegraph was the sole instrument which employed the electric current, the law of electricity did not develop to any marked extent; but the legal questions growing out of the many prac- tical applications of electricity during the last few years have resulted in a very rapid increase in the number of judicial decisions in this department of law. It is to keep the profession in touch with these decisions that the current series of cases has been projected. The opinions are printed exactly as they were delivered, without addition or excision. The annotations are carefully arranged, com- prehensive, and do not suggest any evidence of "padding." A general noteat the end of the volume contains memoranda of cases not selected for reprinting in full. — New York Law Review. Attorneys for electrical interests will do well to possess these volumes. Both the editor and the publisher have done their duties well, and a good book is the result. — Michigan Law Journal. American Bankruptcy Reports. Reports the Federal, Referee and State cases under the Bank- ruptcy Act of 1898, and nothing but bankruptcy cases, and covers the field completely. The decisions are reported first in monthly advance sheets (not for binding), followed by bound volumes, printed on good paper and bound in law sheep, for permanent use. The Annotations, Cross-References, Digesting and Editing are Special Features, and are. very carefully and conscien- tiously done. Price, $5.00 per volume, which includes the complete service, bound volumes, monthly advance sheets, express charges and postage all prepaid. Two volumes a year are issued. Judge WILLIAM J. WALLACE, U. S. Circuit Court, Albany, N. Y. "These reports reflect great credit upon the editor and the publisher for their accurate and complete presentation of the latest decisions, and must commend themselves to the profession." Judge ADDISON BROWN, U. S. District Court, New York City. "They are most conveient in form and the annotations are valu- able." Judge ALFRED C. COXE, U. S. District Court, Utica, N. Y. "The reports are excellently arranged, and you are to be congratu- lated upon having two such accomplished lawyers as Messers. Collier and Eaton as your editors. I am glad to have the bankruptcy reports in law-book form." Smith on Chattel Mortgages and Conditional Sales. Third Edition. This standard work was first published in 1889; an enlarged edition was brought out in 1895, and now a third edition is presented in the belief that it is as necessary and will be as favorably received as have been the first and second editions. Law sheep. Price, $2.50. This branch of law is one unusually vexing and puzzling to the practitioner. The decisions are numerous ; the rules of law to be applied are few and comparatively simple, but the variations in the applications of these rules to the different cases is so wide and divergent as to be puzzling and disheartening to the practitioner when unaided by such a work as this. This third edition has been entirely rewritten and made from new plates. All the decisions have been examined and digested, and the practitioner now has before him the law of this State upon this subject, carefully classified, grouped and indexed. Forms, Table of Cases and a chapter on the effect of the Bankruptcy Act are included. Pingrey on Suretyship and Guaranty. A complete, systematic and concise treatise on the subject, in the light of the very latest decisions. It is ten years later than any other work on the subject. Law sheep. Price, $4.25. " I find that you have well classified and arranged this important topic in our law, and that your treatment of the same, while concise, is systematic, accurate and comprehensive, and cannot fail to be use- ful to the profession." — Judge John F. Dillon, New York. " Mr. Pingrey has, so to speak, boiled down the authorities into the least possible compass and applied them to the principles stated. The work is devoid of useless surplusage. Every sentence is a bullet aimed at some legal mark. We commend Mr. Pingrey's work. It bears evi- dence of long and careful toil in its preparation. It will be of use alike to the law student and the legal practitioner." — The Chicago Legal News. '/ A careful examination of the book has convinced me that it is a useful work upon the subject treated, and certainly more up to date than any other text book on that topic." — Alfred G. Reeves, New York. " I take pleasure in commending Mr. Pingrey's recent book on Suretyship and Guaranty." — James TV. Eaton, Albany, N. Y. " I am pleased with the manner in which you treat the subject." — Judge Jacob W. Wilkin, Illinois Supreme Court. "The work fills a place that has long been vacant. The arrange- ment is excellent, and the statements clear and concise." — Judge H. £. Deemer, Iowa Supreme Court. Heydecker's General Laws of New York. The New Revision of the Statutes. To-day more than four- fifths of the Revised Statutes have been repealed by the enact- ment of the New Revision known as the General Laws. All the General Laws enacted are given in their regular chapter order, and it is now possible for the first time to examine the General Laws as a whole, and readily find the existing law on any of the subjects covered. 4 volumes, law sheep. Price, $15.00 net. The following are some of the important chapters of the General Laws of New York which must now be cited General Laws. 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