Q}nrm>U lOaui ^rljnnl library KFN5894 C A r 3 e i903 erSi,y Library C °V«BHJIIIIHlll7lHiMiliiHinif.'F>i and ^ansfer tax 3 1924 022 874 618 Cornell University Library 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/cu31924022874618 COLLATERAL INHERITANCE TRANSFER TAX LAW STATE OF NEW YORK CONTAINING ORIGINAL ACT OF 1885 WITH ALL AMENDMENTS, THE REVISION OF 1892 WITH ALL SUBSEQUENT AMENDMENTS PRIOR TO 1896, AND THE CODIFICATION OF 1896 WITH ALL SUBSEQUENT AMENDMENTS TO DATE, WITH EACH ACT SEPARATELY ANNOTATED AND INDEXED TOGETHER WITH FORMS AND TABLE OF CASES EDWARD H. ^ALLOWS, of the new york ear, Transfer Tax Attorney for the State Comptroller in New York County. Associate Editor GEORGE M. JUDD, OF THE NEW YORK BAR. NEW YORK: BAKER, VOORHIS & COMPANY. 1903. Copyright, 1903, By EDWARD H. FALLOWS. J. B. LYON COMPANY PRINTERS AND BINDERS ALBANY, St. Y. PREFACE. The plan of this book is to present every successive Collat- eral Inheritance and Transfer Tax Law in the State of New York from the enactment of the first statute in 1885 to the present time, with the decisions of the different courts grouped under the respective sections of the law which they affect. The book is intended to contain within itself all statute law and case law bearing upon the subject. The purpose, in so doing, is to enable a person readily to find the statute in force at the time of a decedent's death, to- gether with the decisions interpreting its provisions, and thereby to obviate the necessity of referring to session laws, digests and text books for that purpose. Following the successive steps in transfer tax legislation, the body of the work is divided into three parts: Part I contains the Act of 1885 with all amendments prior to the revision of 1892, by chapter 399 of the laws of that year; Part II contains the Act of 1892, with all subsequent amend- ments prior to the codification of 1896, by chapter 908 of the laws of that year; and Part III contains the Act of 1896, with all subsequent amendments to date. In each Part, every section affecting rights of persons or property is first printed in its unamended form and then reprinted in its successive amended forms, with the new matter in italics; all sections, however, affecting procedure only, are printed but once with all new amending matter in- dicated by italics. A note following each amended section indicates the scope of the amendment. For greater ease in finding any section of a particular act, the title of the act is printed at the top of each page with the section to which the page relates underneath, together with a headnote indicating the subject matter of the page. Above each amending section [iii] iv Preface. will also be found, in black type, the chapter of the law of which it forms a part, while following each section is a sim- ilar reference in brackets, giving the date when such chapter took effect. All reported decisions of the Surrogates' Courts and Ap- pellate Divisions, from which appeals have not been taken or which have been modified or reversed on appeal upon different grourids, and all decisions of the Court of Appeals, are cited under the respective sections to which they relate, with cross-references if they refer to more than one section. Part IV contains a full set of forms applicable to a pro- ceeding begun under the law now in force. Each part is indexed separately, and an index of all cases cited precedes Part I. The editors express their grateful appreciation to Edward H. Pindar, for many years Chief of the Inheritance Tax Department in the New York State Comptroller's Office, for his valued assistance in the preparation of this book. EDWAED H. FALLOWS. GEOKGE M. JUDD. 170 Broadway, New York City. September first, 1903. TABLE OF CONTENTS. INDEX TO CASES CITED ix-xv PAKT I. ACT OF 1885 AND AMENDMENTS. SEC. PAGE. History of act 1-4 1. Taxable transfers 4-24 construction of act 10 tax is on succession 11 interest passing to beneficiary determines liability to tax 11-12 five-hundred-dollar exemption 12 property or interests taxable 12-14 property or interests not taxable 14-15 transfers to take effect at death 15 future and contingent interests 15-17 property of nonresidents 17-19 exempted persons 19 adopted children; mutually acknowledged relation of par- ent and child 20-21 the exemption of corporations and institutions 21 corporations and institutions exempt 22 corporations and institutions not exempt 22-24 2. Future or contingent interests; deferred payments 24-26 3. Taxes on devises or bequests in lieu of commissions 26-27 4. Discount; interest; penalty 27-28 5. Relief from 10 per cent, penalty 28-29 6. Collection of tax by administrators, executors, and trustees. . 29-30 7. Sale of property to pay tax 30 8. Time of payments; receipts 30-31 9. Notice to county treasurer or comptroller 31-32 10. Refunds to beneficiaries 32 11. Liability of certain corporations to pay tax 32-33 12. Refunds for erroneous payments 33-34 13. Appraisal; assessment of tax; appeals 34-36 the appraisal 37-38 report of appraiser 38-40 appeals 40 reappraisals 40 14. Unlawful acts of appraisers 41 [v] vi Table of Contents. SEC - *t°« 15. Surrogate having jurisdiction 41 4: 16. Proceedings by surrogate for enforcing payment of tax 42-43 17. Proceedings by district attorney 43-44 18. Notice by surrogate and county clerk 44 19. Disbursements of district attorney 45 20. Books to be furnished by state comptroller 45 21. Payments to state treasurer 45-46 22. Fees of county treasurers and comptroller 46 23. Receipts by county treasurer or comptroller 46-47 24. Application of tax 47 25. Repeal by act of 1887; saving clause 47-48 PAST II. ACT OF 1893 AND AMENDMENTS. SEC. PAGE. History of act 49-50 1. Taxable transfers 50-67 constitutionality 52 act not retroactive 52-53 construction of act 53 " transfer " defined 53-54 basis of tax .- 54 tax is on succession 54 amount of estate determines liability to taxation 54-55 test of exemption 55 property or interest taxable 55-57 property or interest not taxable 58 decisions under act of 1885 and amendments applicable to the act of 1892 58-59 transfers in contemplation of death or to take effect at or after death 59-61 future and contingent interests 61-64 nonresidents 64-67 the exemption of corporations and institutions 67 2. Exceptions and limitations 68 exemption of religious corporations and bishops 69 adopted children; mutually acknowledged relation of par- ent and child 69-71 3. Lien of tax and payment thereof 71-73 4. Discount, interest and penalty 73-74 5. Collection of tax by executors, administrators and trustees. . 74-75 6. Refund of tax erroneously paid 75-77 7. Deferred payment 77 8. Taxes upon devises and bequests in lieu of commissions 78 9. Liability of certain corporations to tax 78-79 10. Jurisdiction of the surrogate 79-81 Table of Contents. vii SEC. PAGE. 11. Appointment of appraisers 81-82 12. Proceedings by appraisers 82-88 13. Determination of surrogate 88-93 14. Surrogate's and district attorney's assistants in New York city 93-95 15. Proceedings for the collection of taxes 95-98 16. Receipt from the county treasurer and comptroller 98 17. Fees of county treasurer and comptroller 98-99 18. Books and forms to be furnished by the state comptroller. . 99-100 19. Reports of surrogate and county clerk 100-101 20. Reports of county treasurer and of the comptroller of the city of New York 101 21. Application of taxes 101 22. Definitions 101-102 23. Laws repealed 103 24. Saving clause 103 25. Construction 103-104 26. When to take effect 104 Schedule of laws repealed 104 PART III. ACT OF 1896 AND AMENDMENTS. SEC. PAGE. History of act 105-112 220. Taxable transfers 113-152 constitutionality 116 act not retroactive 116-117 construction of act 117-118 " Transfer " defined 118 basis of tax 118-119 tax is a succession 119-120 amount of estate determines liability to taxation. .. . 120-121 test of exemption 121 application of act 121-122 taxable transfers 122-125 nontaxable transfers 125-126 transfers in contemplation of death or to take effect at or after death 127-131 transfers held taxable 127-129 transfers held not taxable 129-131 property of nonresidents 131-137 taxable transfers 133-135 nontaxable transfers 135-137 future and contingent interests 137-145 viii Table of Contents. sec. 220. Taxable transfers— (Continued): PAGE. powers of appointment 145-150 the exemption of corporations and institutions 150-152 221. Exceptions and limitations 152-160 adopted children — mutually acknowledged relation of parent and child 158-159 exemption of religious corporations and bishops 160 222. Lien of taxes and payment thereof 160-163 223. Discount, interest and penalty 163-165 224. Collection of tax by executors, administrators and trustees. 165-166 225. Refund of tax erroneously paid 167-169 226. Deferred payment 169-170 227. Taxes upon devises and bequests in lieu of commissions. . . 170-171 228. Liability of certain corporations to tax 171-173 229. Jurisdiction of the surrogate 173-176 230 Appointment of appraisers 176-196 230a. Composition of transfer tax upon certain estates 196-197 231. Proceedings by appraisers 197-208 232. Determination of surrogate 209-218 modification of order 213-215 appeals 215-217 appeals to Court of Appeals 217 reappraisals 217-218 233. Surrogates' assistants in New York county 218-219 234. Surrogates' assistants in Kings and certain other counties 219-220 235. Proceedings for the collection of taxes 220-224 decisions 223-224 230. Receipt from the county treasurer and comptroller 224-225 237. Fees of county treasurer 225 238. Books and forms to be furnished by the state comptroller. 225-226 239. Reports of surrogate and county clerk 226-227 240. Reports of county treasurer , 227-228 240a. Report of state comptroller; payment of taxes 228-229 241. Application of taxes . . , 229 242. Definitions 229-231 243. Exemptions in article one not applicable 231 282. Limitation of time 231-232 17. Laws repealed 232 PAET IV. FORMS 233-271 INDEX — PART I — ACT OF 1885 275-278 INDEX — PART II — ACT OF 1892 279-283 INDEX — PART III — ACT OF 1896 285-302 INDEX — PART IV — FORMS 303-305 INDEX TO CASES CITED Matter of Abbett Althause Amherst College v. Ritch Anthony Arnett Astor Babcock Baker Balleis Barowsky '. Bartlett Bartow Baudouine Beach Becker Bentley Berry Bird Birdsall Bishop Black Blackstone Blackstone v. Miller Bliss Board of Foreign Missions Bogert Bolton Borup Bostwick Brandreth Brez Bronson Brooks Bruce Brundage Bullard : : Burr Bushnell Butler Cager Capron Part I. Part II. Part III. Page. Page. Page. 66 135. 124. 39 213. 129. 3,37 199. 37,38.... 83,86,87. 199,207. 141,143. 131. 53,69.... 117,160. 204,205. 57 123. 118,148. 207. 70 111,154,158, 159 203,205. 136. 86 206. 12,21.... 70 159. 60,70.... 127,159. 176. 14 57 123. 18.. 134,136,215. 18 66,67.... 132,134,136, 215. 55 121. 22 216. 164,199,207. 128' ......... 59,60!." 127^129. 128,202. 112,138,139, 143, 184. 65,66.... 133,135,136. 2 63 93 217 ......... 71,86....' 159,199,204. 130. 65,67.... 132,134. 134. 20 70. 158,159,217. 12,16,20. 54,61,69. 120,141,158. 21 71 159. [ix] Index to Oases Cited. Matter of: Carver Catliu v. Trinity College. Chabot Chesebrough Clark Clarke Cobb Cogswell Conklin - Connelly Connoly Coogan Corbett Cornell . Corning Crary . . Crerar . . Crosby . Crouse . Cruger . Cullom . Curtis . . Cushing Daly .. Daniell Davis . De Graaf Delano . , Dimon . , Dingman Doty .... Dowb . . . Dreyfous Dun Part I. Page. Part II. Page. 58 63,64,73. Part III. Page. 140, 146. 126. 16,38.... 18 87. 66. 58. 61. 207. 135, 142. 2 121. 64 58, 76, 91, 92 ... 55 215. 125, 169, 213, 215. 120, 121. 128, 215. 12 56. 84. 92. 61. 130, 201. 162, 196, 214. 15 131. 152. 61. 57. 61. 128. 14 16,22.... 123. 141. 134. 214. 126. 3, 28, 38, 40 52,74,84, 92 86 88 56,92.... 57 117, 164, 165, 200, 215. 124, 164, 206. 147. 208. 122, 216. 123 147," 148, 149. 122. Earle Edelmuth Edgerton Edson . . . Edwards . Eldridge . Embury . . Enston . . 87,92.... 207,214. 121. 15 59, 60, 85. 125, 129, 203. 40 91 212. 15 61 131. 142. 17,18,42. 49,64,75. 131,166. 10, 12, 13, 17 53,64.... 117,131. Farley Fay Fayerweather 14,43.... 97. 11,29.... 53,74, 103. 126, 223. 126, 152, 160. 117, 164. Index to Cases Cited. xi Matter of: Field ... Fisch . . . Fitch ... Forrester Forsyth Frank v. Tanhauser et al. Frazer v. People Fuller Fulton Garland Gibbes Gibson Gihon Glendinning Goelet Gould Graves Greene Grover Hacket Hall .. Hamilton Harbeek . Hathaway . Havemeyer Hellman . . Hendricks . Herr Hoffman . . . Hopkins . Horn .... Hosack . . Houdayer Howard . . Howe Howell . Hoyt . . . Hubbard Hulse ... Hunt .... Part I. Page. Part II. Page. Part III. Page. 145. 23 80, 80, 81, 81 63 72 98 159. 175. 44 162. 224. 194 196 214. 121. 18. 65,65 62 140 203 204 205 57 123 145. 14. 53, 57, 84, 85, 102. 118, 123, 125, 149,199, 201, 203, 230. 126, 151. 30. 17, 23. 11. 34.... 56,60,61, 93 61 75,98.... 55,64,77. 53,63.... 81 • 122, 127, 128, 217. 166, 224. 120, 131, 144. 169. 109. 117, 141, 145, 146. 175. 126 120, 123, 231. 16, 22. 38.... 87 49,54,55, 62, 93, 102.... 207. 16. 119, 120, 141, 145, 218. 136. 138, 144, 180, 65,67.... 77 54 184. 132, 134. 34 1.12 169. 120, 144, 149, 150. 142, 151, 152. 166. 14. 75.81.... 59....... 70 166. 125. 159. Index to Cases Cited. Matter of: Part I. Page, 22 Part II. Page. Part III. Page. 108, 109, 110, 66,67.... 61,91.... 56,72,82, 85 151. 124, 135. 205. 18,19.... 15,40.... 13,23,31, 37,38.. 13 21 22,23.... 31, 37,44. 202. 133, 135. 131, 212, 217. 122, 122, 144, 163, 195, 202. 84. 199 Keith , 23 Kelly 160, 207. 158. 206 20 69. Kene 56. 86. 122 Kennedy 204 20"! 151 195 20"; Kitehing v. Shear 11,13.... 72. 54, 56.... 162. 120 122 158 6?. 64. 140, 146. 215. 208, 213. 142, 143, 150. 54, 86.... 135. 118, 206. 203, 204. 147. 200. 125. 124. Lockwood v. Mildeberger .... Lorillard v. People 58. McCarthy 98. 68. 91. McCoskey 224. MeCready 157. 212. 206. 116. 130. 204, 216. McNeill MePherson 52. McVean v. Sheldon Mahlstedt 12 Manning Index to Cases Cited. Xlll Matter of: Maresi , Marks Masury Merriam Meyer Miller Mills Millward Milne Moench Moore Morgan Morgan v. Cowie Morgan v. Warner Moulton Murphy Neale Newcomb Nichols Niveh O'Donohue Offerman Ogsbury Ottendorfer Page Palmer Park Patterson Peck Pell People v. Prout People ex rel. Martin v. Feitner. Pettit Phipps Plate Piatt Plum Plummer Plummer v. Coler Part I. Part II. Part III. Page. Page. Page. 145,204,205, 206. 205. 59,60.... 127,129. 11, 12, 13, 24 54,56,57. 199,122,123. 64 138,140,144, 180, 184, 194. 12, 16, 19, 20, 21, 40 68,69,90. 131,157,158, 212. 124. 62,85.... 203. 28 53 117,165. 163,224. 21,29.... 70,74.... 159,164. 65 133,215. 91,92.... 214,215,216. 203,217. 70....... 159. 58,86.... 125,206. 22 133. 70 159. 218. 195. ......... 54,86.... 118^206. 15 84 201. 126. 69 160. 77. 169. 84 201. 12 112,139,140, 141, 184, 194, 195. 28 132. 66 137. 18,19.... 65,66.... 133,136. 29 74 164. 142. 58 111,119,120, 124, 125, 137, 230. 111,119,120, 124, 137, 230. XIV Index to Cases Cited. Matter of: Post .... Part I. Page. Part II. Page. 81., Part III. Page, 212. Potter 146. Prall 160. 66 52 134, 136 3,23,24.. 117, 118. Probst 133. 202. Prout Ray Robertson 43 97 68 87,93.... 223. 133, 135, 206. 203. 157 39,41.... 36,40.... 208, 218. 163. Roman Catholic Church, etc. 15 132, 148 149 v. 69 54,65,79. 61,72.... 55 69 91 160 11, 18, 33. 16 20 119, 132, 133, 173. 141. 121. 158. 213 214 196 213 206 59,61,62. 127, 140, 146. 148, 149, 175. 128 77 50, 55, 56, 58, 102. 169. 12 111,121, 122, 125, 230. 203, 213. 54 52,61,64, 84,86.. 56, 68, 69, 88 3,17,38.. Smith 12, 13, 19, 117, 138, 140, 141, 177, 200, 205. 39 122, 157, 160, 201, 208, 217. 189, 194, 195. 158, 159. 129, 130. 70,71.... 12 10, 11, 16, 17. 53, 61, 63. 57 70 117, 141, 145. 123. 158. Stilwell Index to Cases Cited. xv Part I. Part II. Part III. Matter of: Page. Page. Page. Sutton 54,58,86. 118,124,206. Sweetland 21 71 159. Swift 11, 12, 14, 38 53,54,56, 58 117,119,122, 125. Talmadge v. Seaman 59,62 127,140. Taylor 69 160. Thomas 3, 12, 14, 20, 48.. . 58, 69. . .. 125, 136, 158, 203, 204. Thompson 20 69 158,216. Thome 130,217. Thrall 109,151,205. Travis 58 Tucker 149. Tuigg 13,24.... 56 122. Tulane 17 64....... 131. Ullman 42 80,97.... 174,223. Underhill 12,14,22 Vanderbilt 22,23,39. 88 111,119,138, 139, 142, 143, 146, 147, 150, 163, 166, 171, 184, 202, 208. Van Kleeek 21, 23 Vassar 10,15,21, 22 53,59.... 117,119. Vinot 15,16,17. 59,61.... 125. Von Post 214. Wallace 16 92 200,215. Walworth 148. Watson 108,152,160. Weed 12 54 120. Westcott 16 Westurn 12, 37, 39, 40 54,82,85, 86, 87, 92 120,149,196, 203, 205, 208, 216. Weston v. Goodrich 80,90.... 175,212. Wheeler 62,71.... 159. Whiting 50,65,66. 125,133,137. Winters 90 212. Wolfe 21, 39, 44. 88, 90,97, 98 208,211,223, 224. Wood 125,130. Woolsey 19 68 157. Wormser 57,74,92. 123.164,200, 216. COLLATERAL INHERITANCE AND TRANSFER TAX LAW. Part I. THE ACT OF 1885 AND AMENDMENTS. Chapter 483 of the Laws of 1885 was the first law in this State to impose a tax upon transfers of property passing by will or intestacy. The act took effect June 30, 1885, although signed by the Governor on June 10th, of that year. Matter of Howe, 112 N. Y. 100, 19 N. E. 513, 20 St. Rep. 477, 2 L. E. A. 825, affirming 48 Hun, 235, 16 St. Eep. 555. Its constitutionality, whether the tax be regarded as one upon property or upon the succession to property, was upheld in Mat- ter of McPherson, 104 N. Y. 306, 10 N. E. 685, 58 Am. Rep. 502, affirming 41 Hun, 645. The original act applied only to transfers of prop- erty of resident decedents, and was in force from June 30, 1885, until June 25, 1887, when it was amended throughout by chapter 713 of the Laws of 1887. The amendment extended its provisions so as to include the property of nonresident decedents within the State at the time of death. The amendment also extended the exemption clause so as to include property passing to an adopted child or one between whom and a decedent the mutually acknowledged relation of parent and child had existed for not less than ten years prior to death. Neither the Act of 1885 nor the amendment of 1887 imposed a tax on transfers of property passing to lineal descendants or certain near relatives of a de- Act of 1885. History of act. cedent, enumerated in the statute. The Act of 1885 was, however, again amended by Laws of 1891, chap. 215, in effect April 20, 1891, imposing a succession tax on personal property of the value of $10,000 or more, passing to such lineal descendants and certain near relatives theretofore exempt. The Act of 1885 was further amended by Laws of 1892, chap. 169, in effect March 19, 1892, exempting property " heretofore or hereafter " devised or be- queathed to a bishop or religious corporation. The courts have uniformly held that neither the orig- inal Act of 1885 nor any of its amendments was retro- active, except where the intention of the Legislature was unmistakable. Matter of Brooks (Surr. Ct.), 6 Dem. 165, 20 St. Rep. 148; Matter of Cogswell (Surr. Ct.), 4 Dem. 248. After the courts had held in several cases that the Act of 1887 was not retroactive, so as to either tax or exempt property not taxable or exempt under the law in force at the death of a decedent, sec- tion 25 was amended by Laws of 1889, chap. 479, in ef- fect June 14, 1889, providing that the Act of 1887 shall apply to all estates of deceased persons where no as- sessment of the tax has been made. So far as the editor is aware no attempt was ever made under this provision to assess a tax on persons or property not subject to tax prior to the 1887 amendment. Such an assessment would seem to interfere with vested rights and would probably be held unconstitutional. The courts did, however, hold that an exemption first con- ferred by the Act of 1887 was applicable to an estate passing before it took effect, but on which the tax had not been assessed prior to the amendment of Act of 1885. History of act. 1889. Matter of Thomas, 3 Misc. 388, 24 N. Y. Supp. 713. The above amendment of 1892, exempting property passing to bishops and religious corporations, was ex- pressly retroactive. The several amendatory acts are a continuation one of the other. Matter of Prime, 136 N. Y. 347, 49 St. Eep. 658, affirming 64 Hun, 50, 45 St. Rep. 832, 18 N. Y. Supp. 603 ; Matter of Arnett, 49 Hun, 599, 18 St. Rep. 576, 2 N. Y. Supp. 428. Except in the case of retroac- tive exemptions, the tax is imposed under the law existing at the date of death, although subsequent to the death the law is amended so as to include estates or interests not theretofore taxable. Matter of Prime, 136 N. Y. 347, 49 St. Rep. 658, affirming 64 Hun, 50, 45 St. Rep. 832, 18 N. Y. Supp. 603 ; Matter of Davis, 149 N. Y. 539, 44 N. E. 185, affirming 91 Hun, 53, 71 St. Rep. 625, 36 N. Y. Supp. 822; Matter of Sloane, 154 N. Y. 109, 47 N. E. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. The method of procedure, however, is controlled by the law as it exists at the time of the institution of proceedings (cases, supra), and taxes which accrue under the act in force at the time of death are collectible after the act in force at that time has been amended. Matter of Arnett, 49 Hun, 599, 18 St. Rep. 576, 2 N. Y. Supp. 428.. In accordance with the plan of this work as stated in the preface, the Act of 1885 is printed in full, with all amendments prior to its repeal by Laws of 1892, chap. 399. Each amendment affecting the taxability or exemption of interests or persons is separately printed, showing the amendment in italics, but where Act of 1885. § 1 Taxable Transfers. amendments to a particular section affect procedure only, the section is printed but once, with all amend- ments included. LAWS 1885, CHAP. 483. AN ACT to tax gifts, legacies and collateral inheritances. [Passed June 10, 1885. In effect June 30, 1885.] Title amended by Laws 1891, chap. 215, as follows: "An act to tax gifts, legacies and inheritances." Taxable transfers — § 1. After the passage of this act, all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within this state, or any part of such property, or any interest therein, or income therefrom, transferred by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to a body politic or corporate, in trust or otherwise, or by reason whereof any person, or body politic or corporate shall become beneficially entitled, in possession or expect- ancy, to any property, or to the income thereof, other than to or for the use of father, mother, husband, wife, children, brother and sister and lineal descendants born in lawful wedlock, and the wife or widow of a son and the husband of a daughter, and the societies, corporations and institutions now exempted by law from taxation, shall be and is subject to a tax of five dollars on every hundred dollars of the clear market value of such property, and at and after the same rate Act of 1885. Taxable transfers. for any less amount, to be paid to the treasurer of the proper county, and in the city and county of New York to the comptroller thereof, for the use of the state, and all administrators, executors and trustees shall be liable for any and all such taxes until the same shall have been paid, as hereinafter directed ; provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to said duty or tax. When in effect. — The above section was in effect from June 30, 1885, to June 25, 1887, when it was amended by Laws 1887, chapter 713. Amendment, L. 1887, ch. 713. Taxable transfers. — § 1. After the passage of this act all property which shall pass by will or by the in- testate laws of this State, from any person who may die seized or possessed of the same while a resident of this State, or if such, decedent was not a resident of this State at the time of death, which prop- erty, or any part thereof, shall be within this State, or any interest therein, or income therefrom which shall be transferred by deed, grant, sale or gift, made or intended to take effect in possession or en- joyment after the death of the grantor or bargainor, to any person or persons, or to any body politic or cor- porate, in trust or otherwise, or by reason whereof any person or body politic or corporate shall become bene- ficially entitled in possession or expectancy, to any property or to the income thereof, other than to or for the use of his or her father, mother, husband, wife, child, brother, sister, the wife or widow of a son, or the husband of a daughter, or any child or children adopted Act of 1885. § 1 Taxable transfers. as such in conformity with the laivs of the State of New York, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent, and any lineal descendant of such decedent born in lawful wed- lock, or the societies, corporations and institutions now exempted by law from taxation by reason whereof any such person or corporation shall become beneficially entitled, in possession or expectancy, to any such prop- erty or to the income thereof, shall be and is subject to a tax of five dollars on every hundred dollars of the clear market value of such property, and at and after the same rate for any less amount, to be paid to the treasurer of the proper county, and in the city and county of New York to the comptroller thereof, for the use of the State, and all administrators, executors and trustees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed, provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to such duty or tax. [As amended by L. 1887, chap. 713, in effect, June 25, 1887.J Scope of amendment.— The amendment made by the Act of 1887, as indicated by italics, imposed a tax on nonresidents and exempted transfers to adopted children and persons to whom decedent stood in the mutually acknowledged relation of a parent. When in effect.— The section as thus amended was in effect from June 25, 1887, to April 20, 1891, when it was amended bv Laws 1891, chap. 215. J Amendment, L. 1891, ch. 215. Taxable transfers.- § 1. After the passage of this act all property which shall pass by will or by the Act of 1885. Taxable transfers. intestate laws of this state from any person who may die seized or possessed of .the same while a resi- dent of this state; or, if the decedent was not a resident of this state at the time of his death, which property or any part thereof shall be within this state ; or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift made in contemplation of the death of the grantor or bar- gainor, or intended to take effect in possession or en- joyment after such death, to any person or persons or to any body politic or corporate in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled in posses- sion or expectancy to any property or the income thereof, other than to or for societies, corporations and institutions now exempted by law from taxation, or from collateral inheritance tax, shall be and is subject to a tax at the rate hereinafter specified, to be paid to the treasurer of the proper county, and in the county of New York to the comptroller thereof, for the use of the state ; and all heirs, legatees, devisees, adminis- trators, executors and trustees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed. When the beneficial interest to any personal property or income therefrom shall pass to or for the use of any father, mother, husband, wife, child, brother, sister, ivife or a widow of a son, or the husband of a daughter, or any child or children adopted as such in conformity with the laws of the state of New York, or to any person to whom the de- ceased, for not less than ten years prior to death, stood in the mutually acknowledged relation of a parent, or Act of 1885. § 1 Taxable transfers. to any lineal descendant born in lawful wedlock; in every such case the rate of such tax shall be one dollar on every hundred dollars of the clear market value of such property, and at and after the same rate for every less amount, provided that an estate which may be valued at a less sum than ten thousand dollars shall not be subject to any such duty or tax; but if such bene- ficial interest is to or in land or real estate in this state, such interest shall be exempt from taxation under this section. In all other cases, the rate of tax shall be five dollars on each and every hundred dollars of the clear market value of all property, and at and after the same rate for any less amount, provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to any such duty or tax. [As amended by L. 1891, chap. 215, in effect April 20, 1891.] Scope of amendment. — Under the Act of 1885, prior to this amendment, lineals and certain near relatives were exempt from taxation. This amendment, as indicated by italics, imposed a tax of one per cent, on personal property passing to such persons, if of the value of $10,000 or over. When in effect. — The section as thus amended was in effect from April 20, 1891, to March 19, 1892, when it was again amended by Laws 1892, chapter 169. The amendment made by Laws 1891, chapter 215, did not ap- ply to a legacy made by a testator who died on the same day that the act was approved, but shortly before its approval. Matter of Dreyfous (Surr. Ct.), 18 N. Y. Supp. 767, 28 Abb. K C. 27. Amendment, L. 1892, ch. 169. Taxable transfers.— § 1. After the passage of this act all property which shall pass by will or by the in- testate laws of this state from any person who may die seized or possessed of the same while a Act of 1885. Taxable transfers. § 1 resident of this state; or, if the decedent was not a resident of this state at the time of his death, which property or any part thereof shall be within this state ; or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift made in contemplation of the death of the grantor or bar- gainor, or intended to take effect in possession or en- joyment after such death, to any person or persons or to any body politic or corporate in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled in posses- sion or expectancy to any property or the income thereof, other than to or for societies, corporations and institutions now exempted by law from taxation, or from collateral inheritance tax, shall be and is sub- ject to a tax at the rate hereinafter specified, to be paid to the treasurer of the proper county, and in the county of New York, to the comptroller thereof, for the use of the state; and all heirs, legatees, devisees, administrators, executors and trustees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed. When the beneficial interest to any personal property or income therefrom shall pass to or for the use of any father, mother, hus- band, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, or any child or children adopted as such in conformity with the laws of the state of New York, or to any person to whom the deceased, for not less than ten years prior to death, stood in the mutually acknowledged relation of a parent, or to any lineal descendant born in lawful wed- lock; in every such case the rate of such tax shall be 10 Act of 1885. § 1 Construction of act. one dollar on every hundred dollars of the clear market value of such property, and at and after the same rate for every less amount, provided that an estate which may be valued at a less sum than ten thousand dollars shall not be subject to any such duty or tax; but if such beneficial interest is to or in land or real estate in this state, such interest shall be exempt from taxation under this section. In all other cases, the rate shall be five dollars on each and every hundred dollars of the clear market value of all property, and at and after the same rate for any less amount, provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to any such duty or tax, provided further that any property heretofore devised or bequeathed or which may hereafter be de- vised or bequeathed to any person who is a bishop or to any religious corporation, shall be exempted from and not be subject to the provisions of this act. [As amended by L. 1892, chap. 169, in effect March 19, 1892.] Scope of amendment. — The amendment of 1892 merely added the exemption of bishops and religious corporations, as indicated by italics. When in effect. — The section as thus amended was in effect from March 19, 1892, until May 1, 1892, when the Act of 1885, with all its amendments, was repealed and revised by Laws 1892 chap. 399. ' CONSTRUCTION OF ACT. The statute should be construed strictly in favor of the citizen, since it imposes a spscial burden upon particular persons and property and is not in any sense a general tax Matter of Enston, 113 N. Y. 174, 22 St. Eep. 569, 21 N. E. 87, 3 L. E. A. 464, reversing 46 Hun, 506 ; Matter of Vassar 127 N. Y. 1, 37 St. Eep. 239, 27 N. E. 394; Matter of Stewart 131 K Y. 274, 43 St. Eep. 171, 30 N. E. 184, 14 L. E. A. 836 \ Act of 1885. 11 Nature and basis of tax. § 1 Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, 32 N. E. 1096, 18 L. E. A. 709 ; Matter of Fayerweather, 143 N. Y. 114, 38 N. B. 278, 62 St. Rep. 127; Matter of Harbeck, 161 N. Y. 211, 55 N. E. 850. But a liberal construction should be applied to effectuate the legislative intent to subject to taxation a subject of taxation clearly within the scope of the statute. Matter of Stewart, 131 N. Y. 274, 43 St. Rep. 171, 30 N. E. 184, 14 L. R. A. 836, re- versing in part, 61 Hun, 544, 41 St. Rep. 144, 16 N. Y. Supp. 388, and affirming 2 Connoly, 281, 10 N. Y.'Supp. 15. TAX IS ON SUCCESSION. The tax imposed by Act of 1885, as amended by Act of 1887, is not a property tax, but a tax upon the right of succession. Matter of Swift, 137 N. Y. 77, 50 St. Rep. 81, modifying 64 Hun, 639, 47 St. Rep. 47; Matter of Merriam, 141 N. Y. 479, 57 St. Rep. 593. The fiction of law that personal estate has no situs away from the person or residence of its owner is done away with and the truth substituted as the rule of action. Matter of Bomaine, 127 N. Y. 80, 38 St. Rep. 76, 27 N. E. 759, 12 L. R. A. 401, affirming 58 Hun, 109, 33 St. Rep. 784, 11 N. Y. Supp. 313. That property is not liable for a general tax does not prevent its taxation under the Inheritance Tax Act. Matter of Knoedler, 140 N. Y. 377, 55 St. Rep. 666, 35 N. E. 601, affirming 68 Hun, 150, 52 St. Rep. 47, 22 N. Y. Supp. 608. INTEREST PASSING TO BENEFICIARY DETERMINES LIABILITY TO TAX. The term " estate " as used in the Collateral Transfer Act of 1885 and its amendments, refers to the estate passing to the beneficiary and not to the estate of the testator or intestate. This was the construction of the law by the courts until the enactment of Laws 1892, chap. 399, § 22, taking effect May 1, 1892, which expressly defined " estate " as that of the testator or intestate. The following decisions were rendered under the Act of 1885 or its amendments: The word " estate," as used in section 1 of chapter 483, Laws of 1885, as amended by chapter 713, Laws of 1887, in the clause exempting an estate valued at a less sum than $500, means the estate given to the devisee or legatee or descending to the heirs or next of kin, and does not refer to the aggregate estate of the 12 Act of 1885. Property or interests taxable. deceased person. McVean v. Sheldon, 48 Hun, 163, 15 St. Eep. 594, following Matter of McCready, 10 St. Eep. 696 ; Matter of Smith, 5 Dem. 90, and overruling on this point Matter of Miller, 5 Dem. 132 ; Matter of Weed, 10 Misc. 628, 66 St. Eep. 137, 32 N". Y. Supp. 777; Matter of Sterling, 9 Misc. 224, 61, St. Eep. 292, 30 N. Y. Supp. 385. The tax is upon the individual and can be imposed only when the interest of the beneficiary exceeds $500. Matter of Cager, 111 N. Y. 343, 18 N. E. 866, 19 St. Eep. 497, affirming 46 Hun, 657, which reversed 13 St. Eep. 45 ; Matter of Howe, 112 N. Y. 100, 20 St. Eep. 477, 19 N. E. 513, 2 L. E. A. 825, affirming 48 Hun, 235, 16 St. Eep. 555. The amount of tax is measured by the sum or property re- ceived by the legatee. Matter of Westurn, 152 N". Y. 93, 46 N. E. 315. Where the several legacies to collaterals amount to less than $500, they are not taxable. Matter of Weed, 10 Misc. 628, 66 St. Eep. 137, 32 N. Y. Supp. 777. FIVE HUNDRED DOLLAR EXEMPTION. The act does not exempt all legacies or inheritances to the ex- tent of $500, but only those of less value than that sum. Matter of Sherwell, 125 N. Y. 376, 35 St. Eep. 403, 26 N. E. 464, af- firming 58 Hun, 608, 34 St. Eep. 315, 12 K Y. Supp. 200. A legacy of $500 is of the fair market value of its face, and is subject to tax. Matter of Bird (Surr. Ct.), 11 N. Y. Supp. 895, 32 St. Eep. 899. A bequest of $500 to an executor, one-half payable one year after he be qualified and the balance on the final accounting, is not taxable, the present cash value being less than $500. Matter of Underhill (Surr. Ct), 20 N. Y. Supp. 134, 2 Connoly, 262. A bequest of $500 payable at the end of one year is not subject to tax. Matter of Peck (Surr. Ct.), 9 K Y. Supp. 465, 2 Connoly, 201. PROPERTY OR INTERESTS TAXABLE. Property of resident. — Personal property of a resident dece- dent wherever situate is taxable.. Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, reversing on this point 64 Hun, 639, 47 St. Eep. 47; Matter of Corning, 3 Misc. 160, 51 St. Eep. 265, 23 N. Y. Supp. 285. Contra, Matter of Thomas, 3 Misc. 388, 24 N. Y. Supp. 713. Act of 1885. 13 Property or interests taxable. The Act of 1885 only applies to property passing from any person who may die seized or possessed of the same while being a resident of the State and to property within the State owned by a resident and transferred, inter vivos, to take effect at death. Matter of Enston, 113 N. Y. 174, 22 St. Eep. 569, 21 N. B. 87, 3 L. E. A. 464, reversing 46 Hun, 506. Stocks of foreign corporation owned by resident. — Stocks of foreign corporations owned by a resident decedent are taxable. Matter of Merriam, 141 N. Y. 479, 57 St. Eep. 593, 36 N. E. 505, affirming 73 Hun, 587, 56 St. Eep. 159, 26 N. Y. Supp. 191. Property of nonresident. — Property of a nonresident was first subjected to tax by Laws 1887, chap. 713, in effect June 25, 1887. See decision under head " Nonresidents," post, p. 17. Insurance policy of resident. — Life insurance policies held by the testator at the time of his death, and payable to the testator, his executor, administrator, or assigns, or to his legal representatives, are taxable. Matter of Knoedler, 140 N. Y. 377, 55 St. Eep. 666, affirming 68 Hun, 150, 52 St. Rep. 47, 22 N. Y. Supp. 608. Good will of business. — The good will of a newspaper con- ducted by a joint-stock association is subject to taxation. Matter of Jones, 69 App. Div. 237; reversed on another point, 172 N". Y. 575. United States bonds. — A bequest of United States bonds is subject to tax. Matter of Tuigg (Surr. Ct.), 15 N. Y. Supp. 548, 2 Connoly, 633. Judgment against heir or legatee. — A judgment in favor of decedent against an heir or legatee should be appraised. Matter of Smith, 14 Misc. 169. Note of legatee included in residue. — Where a bequest of the residue includes a note made by the legatee, the amount of the note is taxable. Matter of Tuigg (Surr. Ct.), 15 N. Y. Supp. 548, 2 Connoly, 633. Equity in mortgaged lands. — Where lands are devised sub- ject to a mortgage the equity only is taxable. Matter of Kane, 8 Misc. 102, 60 St. Eep. 163, 29 N". Y. Supp. 1078. Interest in realty of joint-stock association. — The interest of a deceased shareholder in the realty of a joint-stock association is personal property, and under chapter 215, Laws of 1891, amending the Laws of 1887, a bequest thereof is subject to tranfer tax. So held, although the interest passed to direct heirs. Matter of Jones, 172 N". Y. 575, reversing 69 App. Div. 237, 74 N. Y. Supp. 702. 14 Act of 1885. § 1 Property or interests not taxable. Bequest for masses. — A bequest to be used for the saying of masses is subject to the inheritance tax. Matter of Black (Surr. Ct), 5 N. Y. Supp. 452, 1 Connoly, 477. legacies to United States. — Legacies to the United States are taxable, the same being a foreign corporation so far as the State of New York is concerned. Matter of Cullom, 145 N. Y. 593, 40 N. B. 163, 65 St. Eep. 866, affirming 76 Hun, 610, 27 N. Y. Supp. 1105. PROPERTY OR INTERESTS NOT TAXABLE. Real estate of resident without the State. — Real estate owned by a resident and located without the State is not subject to tax. Lorillard v. People (Surr. Ct.), 6 Dem. 268, 19 St. Eep. 263. Eeal property without the State owned by a resident decedent is not taxable, although since converted into money which is in the hands of the executors. Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, affirming on this point, 64 Hun, 639, 47 St. Eep. 47. Undistributed share of resident in nonresident estate. — Where the personal estate of a resident decedent consisted of a distributive share in the estate of a deceased nonresident sister, which had not as yet been distributed, such estate is not presently subject to tax. Matter of Thomas, 3 Misc. 388, 24 1ST. Y. Supp. 713. Bequest to executor impressed with trust for exempt person. — A bequest to an executor individually subject to a valid oral trust in favor of testator's brother is exempt. Matter of Farley (Surr. Ct.), 15 St. Eep. 727. A legacy for home during life. — A legacy " in consideration of a home for me at his house during my life time " is not sub- ject to tax. Matter of Hulse (Surr. Ct.), 15 N. Y. Supp. 770, 39 St. Eep. 402. A bequest to settle account. — A bequest to a creditor of more than $500 on condition that he accept it in full of all unsettled accounts and claims is not taxable where it appears that the accounts exceed in amount the sum received. Matter of Under- hill (Surr. Ct.), 20 N. Y. Supp. 134, 2 Connoly, 262. But see Matter of Gould, 156 N. Y. 423. A bequest to pay debts so far as may be proved. — Testator's will gave to H. "any and all benefit, so far as his interest may appear and be proved " in the moneys payable at testator's death in his membership in an insurance association ; the balance to his wife. The insurance was expected to secure testator's debts Act op 1885. Transfers at death; contingent interests. § I to H. Held, not subject to tax. Matter of Roger (Surr. Ct.), 10 N\ Y. Supp. 22, 2 Connoly, 198. Bequest for burial lot. — A bequest for maintenance of a burial lot is exempt. Matter of Vinot (Surr. Ct.), 7 N. Y. Siipp. 517, 26 St. Eep. 610 ; followed in Matter of Edgerion, 35 App. .Div. 125 ; affirmed, without opinion, 158 N. Y. 671. Increase or interest after death. — Under the Act of 1887 it is only the property of which a person died seized or possessed, which is subject to taxation. The increase or interest thereafter obtained from such property is not taxable. Matter of Vassar, 127 N. Y. 1, 37 St. Eep. 239, reversing 58 Hun, 378, 34 St. Eep. 328, 12 N. Y. Supp. 203. TRANSFERS TO TAKE EFFECT AT DEATH. Testator during his last illness delivered to his niece a note of his executor, saying that he had given it to her, that she was to keep it, and that he did not want his heirs to know about it. Held, a valid gift causa mortis and subject to tax. Matter of Crosby (Surr. Ct.), 46 St. Eep. 442, 20 N. Y. Supp. 62. Where a testator, after making a will in favor of wife and children, conveys his property in trust for maintenance of him- self and family with directions that, at his death, it be disposed of according to the terms of his will, the property is taxable. Matter of Johnson (Surr. Ct.), 19 N. Y. Supp. 963, 47 St. Eep. 391. Where the title to personal property, the subject of a gift, passed to the donee upon its delivery by the donor, but the gift was subject to revocation at all times during the lifetime of the donor, it took effect in enjoyment after the death of the donor, and is subject to tax. Matter of Edwards,. 85 Hun, 436, 66 St. Eep. 231, 32 N. Y. Supp. 901; affirmed without opinion, 146 N. Y. 380. ' Fund subjeet to trust for life of testator. — A fund held by a trust company for life of testator under a mere naked and revo- cable trust, the income whereof was to be paid to him and the principal to be turned over at his death to appointees named in his will, or to his next of kin, if such appointment be not made, is taxable at his death. Matter of Ogsbury, 7 App. Div. 71, 39 K Y. Supp. 978. FUTURE AND CONTINGENT INTERESTS. Application of acts. — The Act of 1885 does not apply to re- mainders or other future interests limited by deed delivered be- 16 Act of 1885. Future and contingent interests. fore the act took effect. Matter of Hendricks (Surr. Ct.), 3 N. Y. Supp. 281, 1 Connoly, 301, 18 St. Eep. 989. Nor does it apply to remainders or future interests created by will, where the testator died before the act took effect. Matter of Miller, 110 N. Y. 216. Vested remainder; value ascertainable. — A vested remainder limited on a life estate, the value of the remainder being ascer- \ tainable, is subject to tax at the death of testator. Matter of Vinot (Surr. Ct.), 7 N. Y Supp. 517, 26 St. Eep. 610. Contingent interests, when appraised and taxable, — Contin- gent interests are not to be appraised until contingency happens or defeating contingency has been rendered impossible. Matter of Wallace (Surr. Ct.), 4 N. Y. Supp. 465, 18 St. Eep. 387; Matter of Hopkins (Surr. Ct.), 6 Dem. 1, 19 St. Eep. 516; Mat- ter of Lefever (Surr. Ct.), 5 Dem. 184; Matter of Clark (Surr. Ct.), 5 K Y. Supp. 199, 22 St. Eep. 354. Contingent interests are taxable when they vest in possession and their value can be ascertained. Matter of Stewart, 131 N. Y. 274, 43 St. Eep. 171, reversing in part, 61. Hun, 544, 41 St. Eep. 144, 16 N. Y. Supp. 388. Contingent remainders not being presently appraisable are not presently taxable under Act of 1885. Matter of Cager, 111 K". Y. 344, affirming 46 Hun, 657, which reversed 13 St. Eep. 45. A remainder dependent upon two successive life estates is not presently taxable. Matter of Westcott, 11 Misc. 589, 67 St. Eep. 414, 33 N. Y Supp. 426. Eemainders under a will by which testator created trusts for four designated persons, each trust running for the life of the beneficiary with remainders over to nephews and nieces, or to their then living issue, are not liable to taxation under the Act of 1885 until the termination of the trust; Matter of Stewart, 131 N. Y. 274, distinguished. Matter of Curtis, 142 N. Y. 219, 58 St. Eep. 348, affirming 73 Hun, 185, 56 St. Eep. 113, 25 N. Y. Supp. 909. A contingency affecting the value of a vested remainder under a will, so long as it continues, will prevent the charge of a tax upon the remainder; Matter of Curtis, 142 1ST. Y. 219, 36 N". B. 887, 58 St. Eep. 348, followed. Matter of Roose- velt, 143 N". Y. 120, 62 St. Eep. 130, 25 L. E. A. 695, affirm- ing 76 Hun, 257, 59 St. Eep. 100, 27 N. Y. Supp. 741. life annuities contingent on survivorship are not subject to tax until they vest by the termination of the life on which they are contingent. Matter of Roosevelt, 143 N". Y. 120, 62 St Eep 130, affirming 76 Hun, 257, 59 St. Eep. 100, 27 N. Y. Supp. 741. Act of 1885. 17 Property of nonresidents. § 1 life estate terminable at volition of life tenant. — The value of a life estate, subject to termination at the volition of a life tenant, such as remarriage, cannot be ascertained until the estate has terminated. Matter of Shane, 154 N. Y. 109, 47 JS T . E. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. Property under power of appointment. — The property a per- son takes upon the execution of a power of appointment con- tained in a will, if such person is not exempted by the Collateral Inheritance Tax Law of 1885, is taxable thereunder. Matter of Stewart, 131 N. Y. 274, 43 St. Eep. 171, reversing in part, €1 Hun, 544, 41 St. Eep. 144, 16 N. Y. Supp. 388. Time of transfer. — The death of the testator is the time of the transfer of title to a legacy in remainder, when there is no uncertainty who will take in remainder, although there is uncertainty when the legacy will be paid over to the remainder- man. Matter of Sloane, 154 N. Y. 109, 47 N". E. 978, affirming 19 App. Div. 411, 46 N". Y. Supp. 264. PROPERTY OF NONRESIDENTS. Not taxable under Act of 1885.— The Act of 1885 did not ap- ply to the estates of nonresident decedents, although the prop- erty was within this State. Matter of Enston, 113 N. Y. 174, 22 St. Eep. 569, reversing 46 Hun, 506; Matter of Hall (Gen. T.), 8 1ST. Y. Supp. 556; Matter of Tulane, 51 Hun, 213, 21 St. Eep. 191, 4 K Y. Supp. 36. Taxable under Act of 1887. — By the amendment of 1887, which took effect June 25, 1887, the real and personal property of nonresidents within this State at the time of death was made subject to tax. Matter of Vinot (Surr. Ct), 7 N. Y. Supp. 517, 26 St. Eep. 610. The following decisions affect estates governed by the amendatory act: Real property within State necessary. — The personal prop- erty of a nonresident was not taxable prior to Laws 1892, chap. 399, in effect May 1, 1892, unless there was also real property within the State at decedent's death. Matter of Embury, 19 App. Div. 214; affirmed without opinion, 154 N. Y. 746. Personal property of a nonresident decedent within the State in 1887, but nontaxable at that time because the surrogate . had no jurisdiction to impose a tax, there being no real estate belong- ing to said decedent in this State, and such personalty being subsequently removed, does not become taxable upon the en- actment of a statute conferring jurisdiction upon the surro- 2 Act of 1885. § 1 Property of nonresidents. gate over that class of property. Matter of Embury, 19 App. Div. 214; affirmed without opinion, 154 N. Y. 746. Personal property habitually kept or invested in State. — * Personal property in this State owned by a nonresident, intes- tate, at the time of his death, which was habitually kept or invested by him here, is liable to taxation. Matter of Bomaine, 127 1ST. Y. 80, 38 St. Eep. 76, affirming 58 Hun, 109, 33 St. Eep, 784, 11 N. Y. Supp. 313. Personal property owned by a nonresident and kept invested in the State of New York is liable to taxation. Matter of Phipps, 143 N". Y. 641, 37 N. E. 823, affirming without opin- ion, 77 Hun, 325, 59 St. Eep. 769, 28 N. Y. Supp. 330. Bank account and bond and mortgage in the State taxable. — A bank account and a bond and mortgage in this State of a nonresident decedent, having both real and personal property within the State at time of death, are subject to the inheritance tax. Matter of Clark (Surr. Ct._), 9 N. Y. Supp. 444, 2 Con- noly, 183. But see Matter of Phipps, 143 N. Y. 641, post, as to bond and mortgage. Corporate bonds within State taxable. — Where a nonresident testator died in 1888 creating by his will a trust for the lives of his son and grandson in certain corporate bonds, to pass upon their deaths without issue to his collateral relatives, such bonds being in this State and continuing here until their deaths, the bonds are taxable, whether of foreign or domestic corporations, under the law in force at the time of his death. Matter of Gibbes, 40 Misc. 581. Eeversed as to bonds of foreign corporations only, 84 App. Div. 510. Shares of stock of foreign corporation not taxable. — Shares of stock of foreign corporations owned by a nonresident testa- tor, and within this State at time of death, are not taxable under Laws 1887, chap. 713. Matter of James, 144 N. Y. 6, 62 St. Eep. 855, 38 N. E. 961, affirming 77 Hun, 211, 59 St. Eep. 768, 28 N. Y. Supp. 351. Debts due nonresident from a resident not taxable. — Debts due a nonresident decedent from a resident of the State of New York are not property of the decedent within the State of New York, and are not the subject of taxation under the Trans- fer Tax Act. Matter of Phipps, 143 N. Y. 641, 37 K. E. 823, affirming without opinion, 77 Hun, 325, 59 St. Eep. 769, 28 K Y. Supp. 330. The reasoning of the Supreme Court of the United States in Matter of Blachstone, — U. S. Sup. Ct. — , holding that a de- posit in a bank made by a nonresident is taxable on the theory Act of 1885. 19 Exempted persons. § 1 that it is a debt subject to the jurisdiction of the State, seems to supersede the decision In re Phipps. The New York courts up- held the imposition of the tax in the Blackstone estate upon the ground that it was tangible property within the State. In the Blackstone estate the Supreme Court of the United States said: " We perceive no better reason for denying the right of New York to impose a succession tax on debts owed by its citizens than upon tangible chattels found within the State at the time of the death." Right to a legacy from resident not taxable. — The right of a nonresident decedent to a legacy given by the will of a resident of the State of New York cannot be considered property located within the State for the purposes of taxation. Matter of Phipps, 143 N. Y. 641, 37 N. E. 823, affirming without opinion, 77 Hun, 325, 59 St. Bep. 769, 28 N. Y. Supp. 330. Appropriation of property without State to pay specific legacies. — Where a nonresident .decedent's estate is partly within and partly without the State, the executors may elect to appro- priate that portion without the State to the payment of specific legacies given to collateral relatives and charities and thus avoid a tax thereon, although the property within the State passes to persons not taxable. It would appear, however, that such legacies must be actually paid out of the property elected to be appropriated to their payment. Matter of James, 144 N. Y. 6, 62 St. Bep. 855, affirming 77 Hun, 211, 59 St. Bep. 768, 28 N. Y. Supp. 351. EXEMPTED PERSONS. Lineals and near relatives. — Under the Act of 1885 and its amendments prior to Laws 1891, chap. 215, in effect April 20, 1891, no tax whatever was imposed upon property passing to lineal descendants and other near relatives enumerated in the statute. The term "lineal descendants" in the exemption clause of section 1 of the Act of 1885 includes only direct descendants of the ancestor and not the children of brothers and sisters. Matter of Miller, 45 Hun, 244, 10 St. Bep. 341, affirming on this point, 5 Dem. 132; Matter of Smith (Surr. Ct.), 5 St. Bep. 380. Exemption of legacy to husband of daughter. — A legacy to a husband of a daughter is exempt, although the daughter dies before testator. Matter of McGarvey (Surr. Ct.), 6 Dem. 145, 20 St. Bep. 135 ; Matter of Woolsey (Surr. Ct.), 6 Dem. 145, 19 Abb. N. C. 232. 20 Act on? 1885. § 1 Eelation of parent and child. ADOPTED CHILDREN; MUTUALLY ACKNOWLEDGED , RELATION OF PARENT AND CHILD. The provision exempting a transfer to an adopted child or a person to whom decedent stood in the mutually acknowl- edged relation of a parent was enacted by the amendment of 1887, chap. 713, in effect June 25, 1887. Under the Act of 1885, prior to June 25, 1887, a devise or bequest to an adopted child of testator was subject to tax; Matter of Miller, 110 N. Y. 216, 18 St. Eep. '226, affirming 47 Hun, 394, 13 St. Eep. 45; and the amendment of 1887, excluding legacies to adopted chil- dren from its operation was not retroactive. Matter of Miller, 110 N. Y. 216, 18 St. Rep. 226, 18 N. E. 139, affirming 47 Hun, 394, 13 St. Rep. 45; Matter of Cager, 111 N. Y. 344, af- firming 46 Hun, 657; Matter of Thompson (Surr. Ct.), 6 Dem. 211, 14 St. Rep. 487; Matter of Ryan (Surr. Ct.), 3 N". Y. Supp. 136. But the legislature by the enactment of Laws 1889, chap. 479, amending § 25, in effect June 14, 1889, provided that the Act of 1887 shall apply to all estates where no assessment of the tax has been made. The act was thus given a retroactive effect so as to exempt a devise or bequest to an adopted child, provided the tax had not been assessed. Although when testator died in February, 1887, a legacy to adopted child was taxable, held, where an assessment was not made until after the passage of Laws 1889, chap. 479, such legacy was exempt. Matter of Thomas, 3 Misc. 388, 24 N. Y. Supp. 713. The Act of 1889, chap. 479, exempting transfers to adopted children, did not affect the right to collect a tax which had been imposed and had vested under the Act of 1885 prior to the taking effect of the Act of 1889. Matter of Kemeys, 56 Hun, 117, 29 St. Rep. 916, 9 1ST. Y. Supp. 182. Adoption under the laws of another State is sufficient to establish the relation of parent and child. Matter of Butter, 58 Hun, 400, 34 St. Rep. 189, 12 N. Y. Supp. 201 ; affirmed with- out opinion, 136 N. Y. 649. To establish the mutually acknowledged relation of parent and child for ten years, no evidence of formal adoption is re- quired. It may be proved by the facts and circumstances. Matter of Butter, 58 Hun, 400, 34 St. Rep. 189, 12 N. Y. Supp. 201; affirmed without opinion, 136 K Y. 649; Matter of Spen- cer, 1 Connoly, 208, 21 St. Rep. 145, 4 N. Y. Supp. 395. Act op 1885. 21 Exemption of corporations. § 1 A bequest to a niece by an aunt who had stood in loco parentis for twenty-eight years, during which time the niece lived with said aunt, is exempt from tax. Matter of Spencer (Surr. Ct.), 4 N. Y. Supp. 395, 21 St. Eep. 145, 1 Connoly, 208. Testatrix held to sustain the relation of a parent to her un- married stepdaughter. Matter of Capron (Surr. Ct.), 10 N. Y. Supp. 23, 30 St. Eep. 948. Decedent lived in the family of her deceased sister's husband as housekeeper, on land 'of which she and her sister's adult chil- dren were tenants in common; held, that the relation of parent and child did not exist between her and such children during the life of their father. Matter of Sweetland (Surr. Ct.), 20 N. Y. Supp. 310, 1 Powers, 200, 47 St. Eep. 287. A legacy to a child of an adopted child is not exempt. Matter of Bird (Surr. Ct.), 11 1ST. Y. Supp. 895, 32 St. Eep. 899; Matter of Moore, 90 Hun, 162, 70 St. Eep. 286. THE EXEMPTION OF CORPORATIONS AND INSTITUTIONS. Laws 1889, chap. 191, as amended by Laws 1890, chap. 553, in effect June 7, 1890, expressly exempted from the Collateral In- heritance Tax Law a nonbusiness corporation not deriving a profit from its capital or otherwise, or having the right of making dividends or distributing profits among its members. This act was in force from June 7, 1890, until June 1, 1896, when it was repealed by Laws 1896, chap. 908. Prior to Laws 1890, chap. 553, a corporation must seek exemption either under its special charter or other provisions of the general law. The Act of 1890, chap. 553, was not retroactive. Matter of Wolfe (Surr. Ct.), 15 N. Y. Supp. 539, 2 Connoly, 600; affirmed on other points, 137 N. Y. 205 ; Matter of Van KleecTi, 121 N. Y. 701, 31 St. Eep. 896, reversing 55 Hun, 472, 8 N. Y. Supp. 806. The tax imposed by the Collateral Inheritance Law is a special and not a general one, and exemptions are to be construed strictly in favor of the taxpayers and against the government. Matter of Vassar, 127 N". Y. 1, 37 St. Eep. 239, reversing 58 Hun, 378, 34 St. Eep. 328, 12 N. Y. Supp. 203. The exemption of societies and corporations applies to a class exempted by general statute, as well as by special act. Matter of Miller (Surr. Ct.), 5 Dem. 132; affirmed on another point, 45 Hun, 244, 10 St. Eep. 341. The contrary holding in Matter of Kavanagh (Surr. Ct.), 6 N". Y. Supp. 669, cannot be consid- ered good law. 22 Act op 1885. Corporations exempt. CORPORATIONS AND INSTITUTIONS EXEMPT. The following corporations and institutions were held exempt under the law as it existed before Laws 1890, chap. 553, in effect June 7, 1890 : The Lenox Library of New York. Matter of Lenox (Surr. Ct), 9 N. Y. Supp. 895, 31 St. Eep. 959. The Church Charity Foundation of Long Island for care and support of aged and indigent persons. Matter of Hunter (Surr. Ct), 6 Dem. 154, 11 St. Eep. 704, 22 Abb. N. C. 24. A charitable institution maintaining a hospital supported wholly by voluntary contributions, held exempt as an alms- house. Matter of Curtis (Surr. Ct.), 7 N. Y. Supp. 207, 1 Connoly, 471, 25 St. Eep. 1028. The Wartburg Orphan Farm School whose property is exempt from general taxation. Matter of Eerr, 55 Hun, 167, 27 St. Eep. 591, 7 N. Y. Supp. 852. An institution for the blind which does not receive pay from patients under any circumstances, held exempt as an alms- house. Matter of Underhill (Surr. Ct.), 20 N. Y. Supp. 134, 2 Connoly, 262. Faith Home for Incurables, held exempt as an almshouse. Matter of Neale (Gen. T.), 10 N. Y. Supp. 713, 57 Hun, 591. Brooklyn Home for Consumptives, held exempt as an alms- house. Matter of Herr (Gen. T.), 10 K. Y. Supp. 680, 57 Hun, 591. Legacies to corporations, exempted from taxation upon all property which they are authorized to take and hold, are ex- empt. Bequests to Vassar Brothers' Home for Aged Men, John Guy Vassar Orphan Asylum, Vassar Brothers' Hospital, and Vassar College are exempt under the Act of 1887. Matter of Vassar, 127 N. Y. 1, reversing 58 Hun, 378. Exemption is not defeated by the fact that a charge is made for admission to an institution which is otherwise wholly char- itable. Matter of Vassar, 127 N. Y. 1, reversing 58 Hun, 378, overruling in effect, Matter of Keech, 32 St. Eep. 227 ; Matter of Lenox, 31 St. Eep. 959; Matter of Vanderbilt, 10 N. Y. Supp. 239. CORPORATIONS AND INSTITUTIONS NOT EXEMPT. The Presbyterian Board of Foreign Missions, not being ex- empt from general taxation. Matter of Board of Foreign Mis- sions, 58 Hun, 116, 33 St. Eep. 789, 11 N. Y. Supp. 310. Act op 1885. 23 Corporations not exempt. § 1 The Board of Home Missions of the United States Presby- terian Church. Matter of Lenox (Gen. T.), 11 N. Y, Supp. 311, 58 Hun, 116. A legacy of bonds toward the building of a new church, held taxable. " Christ Church was not, as such, exempt from taxa- tion," at death of testator. Matter of Van Kleech, 121 N. Y. 701, 31 St. Rep. 896, 25 N. $. 50, reversing 55 Hun, 472, 8 N. Y. Supp. 806. A religious society incorporated under a general act and a college not specially exempted from taxation by its charter or by special act. Catlin v. Trinity College, 113 N. Y. 133, 22 St. Rep. 189, affirming 49 Hun, 278, 17 St. Rep. 707, 1 N. Y. Supp. 808. A charitable institution which requires, as a condition of entrance, the making of a will, by the applicant in its favor, and the payment of an admission fee, which, however, the trustees, " in exceptional cases," may remit. Matter of Keech (Gen. T.), 11 N. Y. Supp. 265, 57 Hun, 588. Mutual benefit society incorporated under Act of 1848, chap. 319. Matter of Jones (Surr. Ct.), 2 N. Y. Supp. 671, 18 St. Rep. 383, 22 Abb. N. C. 50. A corporation which is exempt by law only on its real prop- erty. Matter of Forrester (Gen. T.), 12 N. Y. Supp. 774, 35 St. Rep. 776. The American Board of Commissioners for Foreign Missions. Matter of Prime, 136 N. Y. 347. The Society for the Prevention of Cruelty to Animals. Mat- ter of Keith (Surr. Ct), 5 N. Y. Supp. 201, 1 Connoly, 370, 22 St. Rep. 337. The Metropolitan Museum of Art, the American Museum of Natural History, and The Christian Home for Intemperate Men. Matter of Vanderlilt (Surr. Ct.), 10 1ST. Y Supp. 239, 2 Connoly, 319. A bequest to a municipal corporation is not exempt. Matter of Hamilton, 148 N. Y. 310, 42 N. E. 717. The words " now exempted by law " refer to exemptions under the laws of this State ; and the exemption of a foreign corpora- tion under the laws of the State in which it is organized does not withdraw it from the operation of the act. Catlin v. Trin- ity College, 113 N. Y. 133, 22 St. Rep. 189, 20 N. E. 864, 3 L. R. A. 206, affirming 49 Hun, 278, 17 St. Rep. 707, 1 N. Y. 808. A bequest to a foreign charitable corporation, exempt from taxation in the State of its habitat, is taxable ; following Catlin 24 Act of 1885. Contingent interests; deferred payments. v. Trustees, 113 N. Y. 133. Matter of Tuigg (Surr. Ct.), 15 ST. Y. Supp. 548, 2 Connoly, 633 ; Matter of McCoskey, 1 N. Y. Supp. 78'3, 6 Dem. 438. The exemption of certain nonbusiness corporations made by the Act of 1890, chap. 553, amending chapter 191 of the Laws of 1889, applies only to domestic corporations. Foreign religious and charitable corporations are not exempt. Matter of Prime, 136 N". Y. 347, 49 St. Eep. 658, 32 N. E. 1091, 18 L. E. A. 713, affirming 64 Hun, 50, 45 St. Eep. 832, 18 N. Y. Supp. 603; Matter of Merriam, 141 K. Y. 479, 57 St. Eep. 593. L. 1885, ch. 483. Future or contingent interests; deferred payments — § 2. When any person shall bequeath or devise any property, or interest therein, or income therefrom, to a father, mother, husband, wife, children, brother and sister, the widow of a son, or a lineal de- scendant, during life or for a term of years, and the remainder to a collateral heir of the decedent, or to a stranger in blood, or to a body politic or corporate at their decease, or on the expiration of such term, the property so passing shall be appraised immediately after the death of the decedent, at what was the fair market value thereof at the time of the death of the de- cedent, in the manner hereinafter provided, and after deducting therefrom the value of said life estate, or term of years, the tax prescribed by this act on the re- mainder shall be immediately due and payable to the treasurer of the proper county, and in the city and county of New York to the comptroller thereof, and, to- gether with the interest thereon, shall be and remain a lien on said property until the same is paid ; provided that the person or persons, or body politic or corporate beneficially interested in the property chargeable with said tax may elect not to pay the same until they shall Act of 1885. 25 Contingent interests; deferred payments. § 2 come into the actual possession or enjoyment of such property, or, and in that case, such person or persons, or body politic or corporate, shall give a bond to the people of the state of New York in a penalty three times the amount of the tax arising upon personal estate, with such sureties as the said surrogate may approve, conditioned for the payment of said tax and interest thereon, at such time or period as they or their representatives may come into the actual possession or enjoyment of such property, which bond shall be filed in the office of the surrogate of the proper county ; provided, further, that such person shall make a full verified return of such property to said surrogate, and file the same in his office within one year from the death of the decedent and within that period enter into such security and renew the same every five years. Amendment, L. 1887, ch. 713. Future or contingent interests; deferred payments. — § 2. When any grant, gift, legacy or succession upon which a tax is imposed by section first of this act, shall be an estate, income or interest for a term of years or for life, or determinable upon any future or contingent event, or shall be a remainder, reversion or other expectancy, real or personal, the entire property or fund by which such estate, income or interest is supported, or of which it is a part, shall be appraised immediately after the death of the dece- dent, at what was the fair and clear market value thereof at the time of the death of the decedent, in the manner hereinafter provided, and the surrogate shall thereupon assess and determine the value of the estate, 26 Act of 1885. § 3 Bequests in lieu of commissions. income or interest subject to said tax, in the manner recorded in section thirteen of this act, and the tax prescribed by this act shall be immediately due and payable to the treasurer of the proper county, and in the city or county of New York to the comptroller thereof, and, together with the interest thereon, shall' be and remain a lien on said property until the same is paid; provided that the person or persons, or body politic or corporate beneficially interested in the prop- erty chargeable with said tax, may elect not to pay the same until they shall come into the actual possession or enjoyment of such property, and in that case such person or persons or body politic or corporate, shall give a bond, to the people of the State of New York in a penalty of three times the amount of the tax arising upon personal estate, with such sureties as the surro- gate of the proper county may approve conditioned for the payment of said tax and interest thereon at such time or period as they or their representatives may come into the actual possession or enjoyment of such property, which bond shall be filed in the office of the surrogate of the proper county ; provided further, that such person shall make a full verified return of such property to said surrogate, and file the same in his office within one year from the death of the dece- dent, and within that period enter into such security and renew the same every five years. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] For time of assessment of future and contingent interests, see p. 15. Amendment, L. 1887, ch. 713. Taxes on devises or bequests in lieu of commissions § 3. "Whenever a decedent appoints or names one or Act of 1885. 27 Discount; interest; penalty. § 4 more executors or trustees and makes a bequest or devise of property to them in lieu of their commis- sions or allowances, which otherwise would be liable to said tax, or appoints them his residuary legatees, and said bequest, devises or residuary legacies exceed what would be a reasonable compensation for their ser- vices, such excess shall be liable to said tax, and the surrogate's court having jurisdiction in the case shall fix such compensation. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. Amendment, L. 1887, ch. 713. Discount; interest; penalty.— § 4. All taxes imposed by this act unless otherwise herein provided for, shall be due and payable at the death of the decedent, and if the same are paid within eighteen months, no inter- est shall be charged and collected thereon, but if not so paid, interest at the rate of ten per cent per annum shall be charged and collected from the time said tax accrued; provided, that if said tax is paid within six months from the accruing thereof, a discount of five per cent shall be allowed and deducted from said tax, and in all cases where the executors, administrators or trustees do not pay such tax within eighteen months from the death of the decedent, they shall be required to give a bond in the form and to the effect prescribed in section two of this act for the payment of said tax, together with interest. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] The amendment to this and the following section required the payment of the tax within eighteen months instead of one year. 28 Act of 1885. § 5 Relief from penalty. When interest or penalty attaches. — Under the provisions of chapter 483, Laws of 1885, as amended by chapter 713, Laws of 1887, interest or penalty attaches from and after eighteen months from the date of death of the decedent. Matter of Milne, 76 Hun, 328, 59 St. Eep, 100, 27 N". Y. Snpp. 727. Interest on tax on contingent remainder. — Interest can ba charged upon a transfer tax upon an estate in remainder only from the death of the life tenant, where, by the terms of the will creating the estate in remainder, persons entitled to take in re- mainder cannot be determined until such time. Matter of Davis, 149 K. Y. 539, 44 N. E. 185, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N. Y. Supp. 822. Amendment, L. 1887, ch. 713. Relief from ten per cent penalty — § 5. The penalty of ten per cent per annum imposed by section four hereof, for the non-payment of said tax, shall not be charged where in cases by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, the estate of any decedent, or a part thereof, cannot be settled at the end of eighteen months from the death of the decedent, and in such cases only six per cent per annum shall be charged upon the said tax, from the expiration of said eighteen months until the cause of such delay is removed. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] Interest under Act of 1885. — Where an estate cannot be set- tled within one year after death for a reason mentioned in section 5, interest at six per cent, only shall be charged beginning with the expiration of such year until the cause of delay is removed, neither penalty nor interest being charged for the first year. This decision was rendered under the Act of 1885, before the amendment of 1887, extending the period to eighteen months. People v. Prout, 53 Hun, 541, 25 St. Eep. 33, 6 K Y. Supp. 457, reversing 22 St. Eep. 334, 3 N. Y. Supp. 834. Interest under Act of 1887.— Where for specific reasons men- tioned in above section a testator's estate cannot be settled within Act ojp 1885. 29 Collection of tax by executors. § 6 r ■ . — — - — . eighteen months after death, interest at six per centum is only chargeable from the expiration of said eighteen months, and this notwithstanding the repeal of the law prior to the expiration of said eighteen months by Laws 1892, chap. 399, and the substitu- tion of a provision authorizing the charging of interest in such case from the time of death. Section 24 of the latter act saved accrued rights. Matter of F ay er weather, 143 N. Y. 114, 38 N. E. 278, 62 N. Y. St. 127. Relief from penalty. — Relief from penalty will not be granted where the only reasons assigned are that the executors are igno- rant of the law, and that such payment will be a hardship to the legatee. Matter of Plate, 8 Misc. 144, 59 St. Rep. 485, 29 N. Y. Supp. 396. For illustration in which neither interest or penalty was charged on account of unavoidable delay, see Matter of Moore, 90 Hun, 162, 70 St. Rep. 286, 35 N. Y. Supp. 782. Amendment, L. 1887, ch. 713. Collection of tax by administrators, executors and trus- tees. — § 6. Any administrator, executor or trustee having in charge, or trust, any legacy or property for distribution, subject to the said tax, shall deduct the tax therefrom, or if the legacy or property be not money, he shall collect the tax thereon upon the ap- praised value thereof from the legatee or person en- titled to such property, and he shall not deliver, or be compelled to deliver, any specific legacy or property subject to tax to any person until he shall have col- lected the tax thereon; and whenever any such legacy shall be charged upon or payable out of real estate, the heir or devisee before paying the same, shall de- duct said tax therefrom, and pay the same to the ex- ecutor, administrator or trustee, and the same shall re- main a charge on such real estate until paid, and the payment thereof shall be enforced by the executor, ad- ministrator or trustee in the same manner that the pay- 30 Act of 1885. §§ 7, 8 Sale of property; time of payment; receipts. ment of such, legacy might be enforced; if however, such legacy be given in money to any person for a lim- ited period, he shall retain the tax upon the whole amount, but if it be not in money, he shall make appli- cation to the court having jurisdiction of his accounts, to make an apportionment, if the case require it, of the sum to be paid into his hands by such legatees, and for such further order relative thereto as the case may require. [As amended by L. 1887, chap. 713, in effect June 25, 1887.J No change is made by the amendment. The fact that an estate has been distributed is no excuse for the nonpayment of the tax. Matter of Racket, 14 Misc. 282. Amendment, L. 1887, ch. 713. Sale of property to pay tax — § 7. All executors, ad- ministrators and trustees shall have full power to sell so much of the property of the decedent as will enable them to pay said tax, in the same manner as they may be enabled by law to do for the payment of debts of their testators and intestates, and the amount of said tax shall be paid as hereinafter directed. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. Amendment, L. 1887, ch. 713. Time of payment; receipts.— § 8. Every sum of money retained by an executor, administrator or trustee, or paid into his hands, for any tax on any property, shall be paid by him within thirty days thereafter, to the treasurer of the proper county, or in the city and county of New York, to the comptroller thereof, and Act of 1885. 31 Notice to comptroller. § 9 the said treasurer or comptroller shall give, and every executor, administrator or trustee shall take duplicate receipts from him of such payment, one of which re- ceipts he shall immediately send to the Comptroller of the State, whose duty it shall be to charge the treas- urer or comptroller so receiving the tax, with the amount thereof, and shall seal said receipt with the seal of his office, and countersign the same and return it to the executor, administrator or trustee, whereupon it shall be a proper voucher in the settlement of his ac- counts, but an executor, administrator or trustee shall not be entitled to credits in his accounts, nor be dis- charged from liability for such tax, unless he shall pro- duce a receipt so sealed and countersigned by the comp- troller, or a copy thereof certified by him. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. " Proper county " refers to the county of the surrogate first acquiring jurisdiction. Matter of Keenan (Surr. Ct.), 5 N. Y, Supp. 200, 22 St. Eep. 79, 1 Connoly, 226. Credit on accounting may be refused by surrogate unless exec- utor produces transfer tax voucher. Matter of Jones (Surr Ct.), 5-Dem. 30, 19 Abb. K C. 221. Amendment, L. 1887, ch. 713. Notice to county treasurer or comptroller.— § 9. When- ever any of the real estate of which any decedent may die seized sball pass to any body politic or corporate, or to any person or persons other than his or her father, mother, husband, wife, lawful issue, brother, sister, wife or widow of a son, or husband of a daugh- ter, or child or children adopted by such decedent ac- cording to law, or any person to whom the deceased for not less than ten years prior to his or her death, 32 Act of 1885. §§ 10, 11 Refunds; liability of corporations. stood in the mutually acknowledged relation of a par- ent, or in trust for them, or some of them, it shall be the duty of the executors, administrators or trustees of such decedent, to give information thereof in writ- ing to the treasurer or comptroller of the county where such real estate is situate, within six months after they undertake the execution of their respective duties, or if the fact be not known to them within that period, then within one month after the same shall have come to their knowledge. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by amendment, except to conform the sec- tion to section 1 as amended. Amendment, L. 1887, ch. 713. Refunds to beneficiaries. — § 10. Whenever any debts shall be proven against the estate of a decedent, after the payment of legacies or distribution of property from which the said tax has been deducted, or upon which it has been paid, and a refund is made by the legatee, devisee, heir or next of kin, a proportion of the tax so paid shall be repaid to him by the executor, administrator or trustee, if the said tax has not been paid to the county treasurer, comptroller, or to the State Treasurer, or by them if it has been so paid. [As amended by L. 1887, chap. 713, in effect June 25, 1887.J No change is made by the amendment. Amendment, L. 1887, ch. 713. Liability of certain corporations to pay tax. — § 11. "Whenever any foreign executor or administrator shall Act of 1885. 33 Refunds for erroneous payments. § 12 assign or transfer any stocks or loans in this State, standing in the name of a decedent, or in trust for a decedent, which shall be liable to the said tax, such tax shall be paid to the treasurer or comptroller of the proper county on the transfer thereof, otherwise the corporation permitting such transfer shall become lia- ble to pay such tax, provided that such corporation had knowledge before such transfer that said stocks or loans are liable to said tax. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] ~No change is made by the amendment. Administrators are liable for the tax and corporations can transfer stock standing in the name of a nonresident decedent only at their peril until the tax thereon is paid. Matter of Eomaine, 127 N. Y. 80, 38 St. Eep. 76, affirming 58 Hun, 109, 33 St. Eep. 784, 11 N. Y. Supp. 313. Amendment, L. 1887, ch. 713. Refunds for erroneous payments. — § 12. When any amount of said tax shall have been paid erroneously to the State Treasurer, it shall be lawful for him, on satisfactory proof rendered to the Comptroller by said county treasurer or comptroller of such erroneous payment, to refund and pay to the executor, adminis- trator, person or persons who have paid any such tax in error, the amount of such tax so paid, provided that all such applications for the payment of such tax shall be made within five years from the date of such pay- ment. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] The amendment changed the time within which to make appli- cation from two to five years. 3 Act of 1885. § 13 Appraisal; assessment of tax; appeals. Section 12 is the exclusive remedy for securing a refund of money erroneously paid under the Inheritance Tax Law. Matter of Howard, 54 Hun, 305, 27 St. Eep. 8, 7 K Y. Supp. 594. Eefund should be secured under the act and not by appeal under section 2587 of the Code. Matter of Hall (Gen. T.), 7 N. Y. Supp. 595, 27 St. Eep. 133. Amendments, L. 1887, ch. 713; L. 1889, ch. 307; L. 1892, ch. 167. Appraisal; assessment of tax; appeals — § 13. In order to fix the value of property of persons whose estates shall be subject to the payment of said tax, the surro- gate, on the application of any interested party, or upon his own motion, shall appoint some competent person as appraiser as often as and whenever occasion may require, whose duty it shall be forthwith to give such notice by mail to all persons known to have or claim an interest in such property, and to such per- sons as the surrogate may by order direct of the time and place he will appraise such property ; and at such time and place to appraise the same at its fair market value, and for that purpose the said appraiser is au- thorised by leave of the surrogate to issue subpoenas for 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 a report thereof and of such value in writing to said surrogate together with the depositions of the witnesses examined, and such other facts in rela- tion thereto and to said matter as said surrogate may by order require, to be filed in the office of such surro- gate; and from this report the said surrogate shall forthwith assess and fix the then cash value of all es- tates, annuities and life estates for* terms of years * So in original Session Laws. Act of 1885. 35 Appraisal; assessment of tax; appeals. § 13 growing out of said estate, and the tax to which the same is liable, and shall immediately give notice thereof by mail to all parties known to be interested therein, and the value of every future or contingent, or limited estate, income or interest shall for the purpose of this act he determined by the rule, method and standards of mortality and of value, which are em- ployed by the superintendent of the insurance depart- ment in ascertaining the value of policies of life insur- ance and annuities for the determination of the liabili- ties of life insurance companies, save that the rate of interest to be assessed in computing the present value of all future interests and contingencies shall be five per centum per annum; and the superintendent' of the insurance department shall on the application of any surrogate determine the value of such future, or con- tingent, or limited estate, income or interest, upon the facts contained in such report, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct. Any person or persons dissatisfied with such appraisement or assessment may appeal therefrom to the surrogate of the proper county within sixty days after the making and filing of such assess- ment on paying or giving security approved by the surrogate to pay all costs together with whatever tax shall be fixed by said court. The said appraiser shall be paid by the county treasurer or comptroller out of any funds he may have in his hands on account of said tax, on the certificate of the surrogate at the rate of three dollars per day for every day actually and neces- sarily employed in said appraisement, together with 36 Act of 1885. § 13 Scope of amendments. his actual and necessary traveling expenses, including the fees paid such witnesses. The comptroller of the city and county of New York shall retain out of any funds he may have in his hands on account of said tax, a sum of money sufficient to provide' the surrogate in the city and county of New York with a clerk appointed by said surrogate, who shall be known as the "collat- eral inheritance and legacy tax clerk," and whose sal- ary shall be two thousand four hundred dollars a year, payable monthly, and a further sum of money, not ex- ceeding five hundred dollars a year, to be used to pay the expenses of the said surrogate necessarily incurred in the assessment and collection of said tax, saidl amounts to be paid upon the certificates and requisi- tions of said surrogate respectively. [As amended by L. 1887, chap. 713, in effect June 25, 1887 ; L. 1889, chap. 307, in effect May 27, 1889, and L. 1892, chap. 167, in effect March 19, 1892.] Scope of the several amendments to section 13. — The amend- ment of 1887 expressly required the appraiser to give notice of the appraisal " to all persons known to have or claim an interest in such property." The Act of 1885 did not provide the method for valuing future, contingent, or limited interests, and it was held that the value of a life estate is to be computed according to the rules of the Supreme Court establishing mortality tables. Matter of Robertson (Surr. Ct.), 5 Dem. 92. The amendment of 1887 required the value of future, contingent, or limited inter- ests to be determined by the rule, methods, and standard of mortality and of value, employed by the State Superintendent of Insurance, and provided that the Superintendent should make such valuation on the requisition of any surrogate. The amend- ment of 1889 merely provided for a collateral inheritance tax clerk for the surrogates of New York county, and for the ex- penses of that office incident to the collection of the tax. The amendment of 1892 authorized an appraiser, by leave of the surrogate, to issue subpoenas for witnesses, and provided for Act of 1885. 37 Appraisal. § 13 their fees. Section 13 was also amended by Laws 1892, chap. 443, in effect May 3, 1892, subsequent to Laws 1892, chap. 399, which revised the law and repealed the Act of 1885, with all its amendatory acts. This amendment provided for a transfer tax assistant in Bangs county. The amendatory act was, however, repealed in the following year, Laws 1893, chap. 199. It is of no importance in the consideration of the law as affecting taxable interests. Appraiser should only be appointed in taxable estates. — An appraiser should only be appointed in taxable estates. Matter of Jones (Surr. Ct.), 5 Dem. 30, 19 Abb. N. C. 221. Time of appointment of appraisers. — The time when a surro- gate shall appoint an appraiser is left to his sound judgment. Matter of Westurn, 152 1ST. Y. 93, 46 N. B: 315. Notice of appraisal. — ■ An appraiser should mail notices to all persons known to him as having an interest in the property, and a report showing that only the persons whose names appear in the order of appointment were notified is insufficient. Matter of Astor (Surr. Ct), 2 N. Y. Supp. 630, 6 Dem. 402. The " People " are an " interested party," although not cited, and, where the district attorney appears, it will be assumed that he had authority to do so. Matter of Arnett, 49 Hun, 599, 18 St. Eep. 576, 2 N. Y. Supp. 428. Appraisal where property is in more than one county. — The appraiser appointed by the surrogate first acquiring juris- diction may appraise the property, although it is situate in more than one county. Matter of Keenan (Surr. Ct.), 5 N. Y. Supp. 200, 22 St. Eep. 79, 1 Connoly, 226. THE APPRAISAL. Commissions and expenses of administration to be deducted. — In determining the value of an estate for the purpose of taxation it is proper to deduct a sum for the commissions of administra- tors and expenses of administration. Matter of Westurn, 152 N". Y. 93, 46 N. E. 315. ' Expenses of successful contestants of a will not deductible. — In determining the value of an estate for the purpose of taxation a sum expended by the successful contestants in litigation over a will cannot be deducted. Matter of Westurn, 152 N. Y. 93, 46 N. E. 315. Findings in appraiser's report based on briefs of counsel; improper. — It is improper for an appraiser to rely on the briefs ;J8 Act of 1885. § 13 Report of appraiser. of counsel to sustain his findings as to the property taxable. Matter of Astor (Surr. Ct.), 2 N. Y. Supp. 630, 6 Dem. 402. Shares of joint stock association; how appraised. — Where the shares of a joint-stock association are not listed upon the Stock Exchange or sold in open market, if the property of the associa- tion consists of realty, the value thereof may be considered in appraising the shares. Matter of Jones, 172 N. Y. 575, reversing 69 App. Div. 237, 74 N. Y. Supp. 702. 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 title, and not the value at the time of the transfer of possession. Matter of Davis, 149 N. Y. 539, 44 N. B. 185, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N". Y. Supp. 822 ; Matter of Shane, 154 N. Y. 109, 47 N. E. 978, affirming 19 App. Div. 411, 46 N". Y. Supp. 264. REPORT OF APPRAISER. The appraiser should report all property as to which he is in doubt as subject to tax. Matter of Hendricks (Surr. Ct.), 3 K Y. Supp. 281, 1 Connoly, 301, 18 St. Eep. 989. It is the duty of the appraiser to report all the property as liable to tax, and it is improper for the report to contain a state- ment of the exempt property. Matter of Astor (Surr. Ct.), 2 N. Y Supp. 630, 6 Dem. 402. An appraiser's report showing that he had appraised " all the property of the deceased made known to him by the executor " is insufficient. He should appraise all the property liable to the tax regardless of the source of information. Matter of Astor (Surr. Ct.), 2 K Y. Supp. 630, 6 Dem. 402. The report of an appraiser should show that the property was appraised at its fair market value. Matter of Astor (Surr. Ct.), 2 N. Y. Supp. 630, 6 Dem. 402. Where an annuity is left to persons exempt, with contingent remainder to persons taxable, the appraiser should report the market value of the contingent interest at the date of decedent's death, and leave the taxation for future action. Matter of Clarlc (Surr. Ct.), 5 N. Y. Supp. 199, 1 Connoly, 431. The appraisers should report the legacies taxable without any deduction for any purpose or under any testamentary direction. Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, 32 N. E. 1096, 18 L. E. A. 709. Conclusiveness of report and order thereon. — Where the ap- praiser has exhausted every remedy in force at the time the Act of 1885. 39 Report of appraiser. § 13 appraisal was made, his acts and conclusions are binding upon the State unless he committed errors for which an appeal might have been taken. Matter of Smith, 14 Misc. 169. The report of the appraiser that certain legacies are the only ones taxable, when confirmed by the surrogate, protects the exec- utor from claim for amount of taxes upon other legacies not in- cluded in the assessment. The surrogate may entertain proceed- ings for enforcing tax from legatees, to be instituted by the dis- trict attorney. Matter of Vanderbilt (Surr. Ct.), 10 N. Y. Supp. 239, 2 Connoly, 319; Matter of Wolfe (Surr. Ct), 15 N. Y. Supp. 539, 2 Connoly, 600; affirmed on other points, 137 N. Y. 205. Reservation of right to tax uncertain claims.— It seems that, where deductions for doubtful and uncertain claims are allowed, an appropriate recital should be included in the appraiser's re- port and the order fixing tax to the effect that the deductions are without prejudice to the right of the estate to a further ap- praisal and taxation of the whole or any part thereof, in the event that it shall afterward appear that the items so deducted are not valid claims or are of less value than the amount at which they were allowed. Matter of Rice, 29 Misc. 404, 61 N". Y. Supp. 911 ; affirmed on opinion below, 56 App. Div. 253. In determining the value of an estate for the purpose of taxa- tion a note, on which suit has been brought by administrators and is still pending when an appraisal is made, should be ex- cluded and reserved for future appraisement in case it is col- lected. Matter of Westurn, 152 N". Y. 93, 46 1ST. E. 315. Surrogate is taxing officer. — The surrogate is made the as- sessing and taxing officer, and as such is the representative of the State. He may proceed with the assessment of the tax without notice to any city official. Matter of Wolfe, post. A decree adjudging certain legacies exempt is a bar to a sub- sequent proceeding by the district attorney to enforce a tax thereon. Matter of Wolfe, 137 1ST. Y. 205, 50 St. Eep. 406, 33 N. E. 156, reversing 66 Hun, 389, 50 St. Eep. 115, 21 N. Y. Supp.*515. Assessment of tax by surrogate; persons assessed. — An adjudi- cation by a surrogate, in a proceeding under the Inheritance Tax Act, that a certain amount of property passed to residuary lega- tees under the will, is binding upon the question of taxation only, and is not conclusive upon the rights of parties arising from matters outside of the will. Amherst College v. Bitch, 151 N. Y. 282, 45 N. E. 876, 37 L. K. A. 305. 40 Act of 1885. § 13 Appeals; reappraisals. A life tenant is not liable to pay the tax upon remainders, but the same should be borne by the beneficiaries. Matter of McMahon, 28 Misc. 697, 60 N. Y. Supp. 64. The tax on a life estate should be taken from the income and on the remainder deducted from the principal. Matter of Johnson (Surr. Ct), 6 Dem. 146, 20 St. Rep. 134. Judgment on construction of will not conclusive as to tax. — An executor taking a third of a residuary estate is not relieved from tax, although in an action to obtain a construction of the will it was held impressed with a trust. The State is not con- eluded by the judgment of the Supreme Court entered upon the remittitur of the Court of Appeals in such action, but may examine the remittitur and the opinion. Matter of Edson, 38 App. Div. 19, 56 N. Y. Supp. 409 ; affirmed on opinion below, 159 1ST. Y. 568. Presumption as to notice by surrogate. — In the absence of any proof to the contrary, it is to be presumed that the surrogate has given the requisite notice. Matter of Miller, 110 N". Y. 216, 18 St. Rep. 226, affirming 47 Hun, 394, 13 St. Rep. 45. Valuation of life estate under act of 1885. — A life estate, under Act of 1885, is to be computed according to the rule of the Supreme Court establishing mortality tables. Matter of Robertson (Surr. Ct.), 5 Dem. 92. APPEALS. Where the grounds of the appeal are required to be stated, none except those specified can be considered. Matter of Davis, 149 N. Y. 539, 44 K E. 183, affirming 91 Hun, 53, 71 St. Rep. 625, 36 N. Y. Supp. 822. A question may be raised upon an appeal 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 allowed for appeal. The surrogate may take new evidence upon an appeal. Matter of Wejturn, 152 N. Y. 93, 46 N. E. 315. REAPPRAISALS. Upon an application for a new appraisal the appraiser must not reappraise property included in the original appraisal at a higher valuation than that fixed on such appraisal, nor reduce the allowance made upon the first appraisal for debts due by the decedent, and for expenses of administra- tion, although some of such debts have been successfully dis- Act of 1885. 41 Unlawful acts of appraisers; surrogate's jurisdiction. §§ 14, 15 puted by the executors and the expenses of administration proved less than estimated. These matters are res adjudicate, until the order is reversed or modified. Matter of Rice, 56 App. Div. 253, affirming 29 Misc. 404, 61 N. Y. Supp. 911. Amendment, L. 1887, ch. 713. Unlawful acts of appraisers. — § 14. Any appraiser ap- pointed by virtue of this act who shall take any fee or reward from any executor, administrator, trustee, lega- tee, next of kin or heir of any decedent, or from any other person liable to pay said tax, or any portion thereof, shall be guilty of a misdemeanor, and upon conviction in any court having jurisdiction of misde- meanors, he shall be fined not less than two hundred and fifty dollars nor more than five hundred dollars, and imprisoned not exceeding ninety days, and in addi- tion thereto the surrogate shall dismiss him from such service. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. Amendment, L. 1887, ch. 713. Surrogate having jurisdiction.— § 15. The surrogate's court in the county in which the real property is situate of a decedent who was not a resident of the State, or in the county of which the decedent was a resident at the time of his death, shall have jurisdiction to hear and determine all questions in relation to the tax aris- ing under the provisions of this act, and the surrogate first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. 42 Act of 1885. § 16 Proceedings to enforce payment of tax. Nonresidents. — In view of the language of this section, the transfer of the personal property of a nonresident is not sub- ject to taxation unless there is real property of decedent within the State upon which a surrogate can base a claim to jurisdic- tion. Matter of Embury, 19 App. Div. 214; affirmed without opinion, 154 N. Y. 746. Powers of surrogate. — The Surrogate's Court has power to decide every question that may arise in a proceeding under the act which may be necessary to fully discharge the duties im- posed upon it. Matter of TJllman, 137 N. Y. 403, 33 N. E. 480, 51 St. Rep. 1, reversing 67 Hun, 5, 21 N. Y. Supp. 758, 50 St. Rep. 748. Amendment, L. 1887, ch. 713. Proceedings by surrogate for enforcing nayment of tax. — § 16. If it shall appear to the surrogate's court that any tax accruing under this act has not been paid ac- cording to law, it shall issue a citation, citing the per- sons interested in the property liable to the tax to appear before the court on a day certain, not more than three months after the date of such citation, and show cause why said tax should not be paid. The ser- vice of such citation and the time, manner and proof thereof, and fees therefor, and the hearing and deter- mination thereon, and the enforcement of the determi- nation or decree shall conform to the provisions of the Code of Civil Procedure, for the service of citations now issuing out of surrogates ' courts, and the hearing and determination thereon and its enforcement. And the surrogate, or clerk of the surrogate's court, shall, upon the request of the district attorney, treasurer of the county, or comptroller of the county of New York, furnish, without fee, one or more transcripts of such decree as provided in section twenty-five hundred and •fifty-three of the Code of Civil Procedure, and the same shall be docketed and filed by the county clerk of Act of 1885. 43 Proceedings by district attorney. § 17 any county in the State without fee, in the same man- ner, and with the same effect as provided by said sec- tion for filing and docketing transcripts of decrees of such courts. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. An order for the payment of tax cannot be enforced by pro- ceedings for contempt before the return of an execution on the surrogate's decree. Matter of P rout (Surr. Ct.), 3 N. Y. Supp. 831, 19 St. Eep. 318. The surrogate cannot, on the motion of the executor, decide the question of his liability to pay the tax. Proceeding must be instituted by the district attorney. Matter of Farley (Surr. Ct.), 15 St. Eep. 727. Amendments, L. 1887, ch. 713; L. 1892, ch. 168. Proceedings by district attorney § 17. Whenever the treasurer or comptroller of any county shall have reason to believe that any tax is due and unpaid under this act, after the refusal or neglect of the persons in- terested in the property liable to said tax to pay the same, he shall notify the district attorney of the proper county, in writing, of such failure to pay such tax, and the district attorney so notified, if he have probable cause to believe the tax is due and unpaid, shall prose- cute the proceeding in the surrogate's court in the proper county, as provided in section sixteen of this act for the enforcement and collection of such tax. All costs awarded by such decree that may be collected after the collection and payment of the tax to the treas- urer or comptroller of the proper county, may be re- tained by the district attorney for his own use. Such costs shall be fixed by the surrogate in his discretion, but shall not exceed in any case where there has not 44 Act of 1885. § 18 Notice by surrogate of unpaid tax. been a contest the sum of one hundred dollars, or where there has been a contest, the sum of two hundred and fifty dollars. [As amended by L. 1887, chap. 713, in effect June 25, 1887, and L. 1892, chap. 168, in effect March 19, 1892.] No change was made by the amendment of 1887. The amend- ment of 1892 added the italicized words. " Proper county " refers to the county of the surrogate first acquiring jurisdiction. Matter of Keenan (Surr. Ct.), 5 N. Y. Supp. 200, 22 St. Eep. 79, 1 Connoly, 226. When proceedings may be taken. — Proceedings by the dis- trict attorney for the enforcement and collection of a tax may be taken only where the tax is due and has not been paid. Mat- ter of Wolfe, 137 N. Y. 205, 50 St. Eep. 406, 33 N. E. 156, re- versing 66 Hun, 389, 50 St. Eep. 115, 21 N. Y. Supp. 515. District attorney proceedings for the enforcement of the tax are not to be taken until after eighteen months from the date of death of decedent, and no costs should be allowed against executor or trustee where proceedings are instituted prior thereto. Frazer v. People (Surr. Ct.), 3 N. Y. Supp. 134, 6 Dem. 174. Proceeding is not an action for a penalty.— An action to com- pel payment of a legacy tax is not an action for a penalty which must be brought within two years after the cause of action ac- crues. (Code, § 384.) Matter of Wolfe (Surr. Ct.), 15 N. Y. Supp. 539, 2 Connoly, 600; affirmed on other points, 137 N. Y. 205. Amendment, L. 1887, ch. 713. Notice by surrogate and county clerk. — § 18. The sur- rogate and county clerk of each county shall, every three months, make a statement in writing to the county treasurer or comptroller of his county of the property from which, or the party from which, he has reason to believe a tax under this act is due and unpaid. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. Act of 1885. 45 Disbursements; books; payments to treasurer. §§ 19, 20, 21 Amendment, L. 1887, ch. 713. Disbursements of district attorney. — § 19. Whenever the surrogate of any county shall certify that there was probable cause for issuing a citation and taking the proceedings specified in section seventeen of this act, the State Treasurer shall pay or allow to the treas- urer or comptroller of any county all expenses incurred for services of citation and his other lawful disburse- ments that have not otherwise been paid. [As amended by L. 1887, chap. 713, in effect June 25, 1887. J No change is made by the amendment, except to change the word " sixteen " to " seventeen," correcting a misreference. Amendment, L. 1887, ch. 713. Books to be furnished by State comptroller.— § 20. The Comptroller of the State shall furnish to each surro- gate a book in which he shall enter the returns made by appraisers, the cash value of annuities, life es- tates and terms of years and other property fixed by him, and the tax assessed thereon, and the amounts of any receipts for payments thereon filed with him, which books shall be kept in the office of the surrogate as a public record. [As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. Amendment, L. 1887, ch. 713. Payments to State Treasurer.— § 21. The treasurer of each county and the comptroller of the county of New York shall collect and pay the State Treasurer all taxes that may be due and payable under this act, who shall give him a receipt therefor, of which collection and 46 Act of 1885. §§ 22, 23 Fees of treasurer and comptroller; receipts. payment he shall make a report under oath to the Comptroller on the first Monday in March and Sep- tember of each year, stating for what estate paid, and in such form and containing such particulars as the Comptroller may prescribe ; and for all such taxes col- lected by him and not paid to the State Treasurer by the first day of October and April of each year he shall pay interest at the rate of ten per cent per annum. {As amended by L. 1887, chap. 713, in effect June 25, 1887.] No change is made by the amendment. Amendment, L. 1887, ch. 713. Fees of county treasurers and Comptroller. — § 22. The treasurer of each county and the comptroller of the city and county of New York, shall be allowed to retain, on all taxes paid and accounted for by him each year, under this act, in addition to his salary or fees now allowed by law, five per cent on the first fifty thousand dollars so paid and accounted for by him, three per cent on the next fifty thousand dollars so paid and ac- counted for by him, and one per cent on all additional sums so paid and accounted for by him. [As amended by L. 1887, chap. 713, in effect June 25, 1887. J The fee under the Act of 1885 was 5 per cent, on all taxes paid. Amendments, L. 1887, ch. 713; L. 1891, ch. 215. Receipts by county treasurer or comptroller.— § 23. Any person or body politic or corporate shall, upon payment of the sum of fifty cents, be entitled to a re- ceipt from the county treasurer of any county, or from the comptroller of the county of New York, or a copy Act of 1885. 47 Application of tax; saving clause. §§ 24, 25 of the receipt at his option, that may have been given by the said treasurer or comptroller for the payment of any tax under this act, to be sealed by the seal of his office, which receipt shall designate on what real property, if any, of which decedent may have died seized, said tax has been paid, and by whom paid, and whether or not is in full of said tax; and said receipt may be recorded in the clerk's office of the county in which said property is situated, in a book or books to be kept by said clerk for such purpose, which shall be labeled legacy and inheritance tax. [As amended by L. 1887, chap. 713, in effect June 25, 1887, and L. 1891, chap. 215, in effect April 20, 1891.] No change was made by the amendment of 1887. The amend- ment of 1891 merely changed the name of the tax in view of its imposition on lineals. Amendment, L. 1887, ch. 713. Application of tax — § 24. All taxes levied and col- lected under this act, shall be paid into the treasury of the State, for the uses of the State, and shall be applicable to the payment of the general expenses of the State government, and to such other purposes as the Legislature may by law direct. [As amended by L. 1887, chap. 713, in effect June 25, 1887,] New. Added by amendment. Amendment, L. 1889, ch. 479. Repeal by Act of 1887 ; saving clause.— § 25. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed, but this act shall apply to all estates of deceased persons where no assessment of the tax has been made to which such estate or estates 48 Act of 1885. § 25 Repeal of 1887; saving clause. are liable under the provisions of the foregoing act. [As amended by L. 1889, chap. 479, in effect June 14, 1889.] The amendment of 1889 added the matter in italics. The effect was to exempt from the tax interests and persons taxable under the Act of 1885, but exempt under the amendment of 1887, provided that on June 14, 1889, the tax had not been as- sessed. See Matter of Thomas, 3 Misc. 388, 24 N. Y. Supp. 713. For discussion of effect of amendment, see p. 20. F*art II. THE ACT OF 1892 AND AMENDMENTS. Chapter 399 of the Laws of 1892 revised the prior legislation relating to taxable transfers, and repealed the Act of 1-885, with all its amendatory acts, except chapter 443 of the Laws of 1892, amending section 13 of the Act of 1885, by providing for a surrogate's assist- ant in Kings county. This amendment was signed by the Governor subsequent to May 1, 1892, when chapter 399 took effect. Chapter 443, Laws of 1892, was, how- ever, repealed by the Laws of 1893, chapter 199. Thus, from May 1, 1892, to June 15, 1896, the law relating to taxable transfers remained, practically, unchanged. A few important changes were made by the Act of 1892. Section 1 expressly imposes the tax upon non- resident property within the State at the time of death, and section 10 is so amended as to eliminate the provi- sion requiring the existence of real property of a non- resident within the State in order to impose a tax on the personalty. The Act of 1892 supersedes, on this point, the decision of Matter of Embury, 19 App. Div. 214, affirmed without opinion, 154 N. Y. 746. Section 22 defines the words "estate" and "prop- erty" as meaning the property or interest of the tes- tator or intestate, and not the property or interest passing to the individual beneficiary, and the Court of Appeals has held, in Matter of Hoffman, 143 N. Y. 327, 38 N. E. 311, that, under the Act of 1892, it is the ag- 4 50 Act of 1892. S 1 Table of contents. gregate amount of the estate passing to taxable per- sons, and not the share of any particular legatee, which determines the liability to or exemption from the tax, superseding the decision to the contrary under the Act of 1885 and its amendments. Section 22 also de- fined "property" as that "over which this State has any jurisdiction for the purposes of taxation." This definition conversely was held to exclude from the operation of the act property over which the State has no jurisdiction for the purposes of general taxation, and thus, as to United States bonds, at least, made a material change in the law. Under the former law, a transfer of United States bonds was taxable, but, under the language of section 22, the Court of Appeals held that their transfer was exempt. Matter of Whiting, 150 N. Y. 27 ; Matter of Sherman, 153 N. Y. 1. This was the law until March 1, 1898, when Laws of 1898, chap. 88, amended the Act of 1896 by omitting the words limiting the application of the law to property over which the State has jurisdiction for the purposes of taxation. LAWS 1892, CHAP. 399. [In effect May 1. 1802.] AN ACT in relation to taxable transfers of property. TAXABLE TRANSFERS OF PROPERTY. Section 1. Taxable transfers. 2. Exceptions and limitations. 3. Lien of tax and payment thereof. 4. Discount, interest. and penalty. 5. Collection of tax by executor, administrators and trustees. 6. Eefund of tax erroneously paid. 7. Deferred payments. Act of 1892. 51 Taxable transfers. Section 8. Taxes upon devises and bequests in lieu of commis- sions. 9. Liability of certain corporations to tax. 10. Jurisdiction of the surrogate. 11. Appointment of appraisers. 12. Proceedings by appraisers. 13. Determination by surrogate. 14. Surrogate's assistants in New York city. 15. Proceedings for the collection of taxes. 16. Eeceipt from the county treasurer and comptroller. 17. Fees of county treasurer and comptroller. 18. Books and forms to be furnished by the state comp- troller. 19. Eeports of surrogate and county clerk. 20. Eeports of county treasurers and comptrollers of the city of New York. 21. Application of taxes. 22. Definitions. 23. Laws repealed. 24. Saving clause. 25. Construction. 26. When to take effect. § 1. 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 therefrom, 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 pos- sessed 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 non- resident of the state at the time of his death. 3. When the transfer is of property made by a resi- dent or by a non-resident, when such non-resident's 52 Act of 1892. § 1 Constitutionality; act not retroactive. property is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect, in possession or enjoyment, at or after such death. Such tax shall also be imposed when any such person or corporation becomes beneficially entitled, in posses- sion or expectancy, to any property or the income thereof by any such transfer, whether made before or after the passage of this act. Such tax shall be at the rate of five per cent upon the clear market value of such property, except as otherwise prescribed in the next section. Revised from L. 1885, chap. 483, § 1, as amended by L. 1887, chap. 713, L. 1891, chap. 215, and L. 1892, chap. 169, in effect from May 1, 1892, to June 15, 1896. CONSTITUTIONALITY. The leading case on the constitutionality of transfer tax legis- lation is Matter of McPherson, 104 K Y. 306, 10 N. E. 685, 58 Am. Eep. 502, affirming 41 Hun, 645. ACT NOT RETROACTIVE. With the exception of certain exemptions which have been given retroactive effect, and the provisions of Laws 1896, chap. 908, as amended by Lasvs 1897, chap. 284, taxing property passing upon the exercise of a power of appointment, the tax is imposed under the law existing at the date of death, although subsequent to the death the law is amended so as to include estates or interests not theretofore taxable; Matter of Prime, 136 N. Y. 347, 49 St. Eep. 658, affirming 64 Hun, 50, 45 St. Eep. 832, 18 N. Y. Supp. 603 ; Matter of Davis. 149 N. Y. 539, 44 N\ B. 183, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N. Y. Si\pp. 822 ; Matter of Shane, 154 N. Y. 109, 47 1ST. B. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264; while the method of procedure is governed by the law as it exists at the time of the institution of proceedings. See cases supra. Unless the intention is clear no retroactive effect should be Act of 1892. 53 Construction of act; transfer defined. § 1 given to a statute, and the particular law 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, 329, 59 St. Eep. 100, 27 N. Y. Supp. 727. CONSTRUCTION OF ACT. The statute should be construed strictly in favor of the citizen and against the State. Matter of Enston, 113 N. Y. 174, 22 St. Eep. 569, 21 N. E. 87, ,3 L. E. A. 464, reversing 46 Hun, 506 ; Matter of Vassar, 127 N. Y. 1, 37 St. Eep. 239, 27 N. E. 394; Matter of Stewart, 131 N. Y. 274, 43 St. Eep. 171, 30 N. E. 184, 14 L. E. A. 836 ; Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, 32 N". E. 1096, 18 L. E. A. 709 ; Matter of Fayerweather, 143 N. Y. 114, 38 N". E. 278, 62 St. Eep. 127 ; Matter of Earbeck, 161 N. Y. 211, 55 N. E. 850. But a liberal construction should be applied to effectuate the legislative intent to subject to taxation a subject of taxation clearly within the scope of the statute. Matter of Stewart, supra. A provision of chapter 399 of the Laws of 1892 should re- ceive the same construction as a similar provision in a prior act has received. Matter of Balleis, 144 N. Y. 132, 63 St. Eep. 27, 38 N. E. 1007, affirming 78 Hun, 275, 60 St. Eep. 792, 29 N. Y. Supp. 261. " TRANSFER" DEFINED. The statute reads: "A tax shall be and is hereby im- posed upon the transfer of any property * * * when the transfer is by will." The Court of Appeals in construing the clause in The Matter of Gould, 156 N. Y. 423, modifying 19 App. Div. 352, said: "It is certainly within the consti- tutional power of the legislature to tax all property by will, whether the motive of the testator be to make a gift or pay a debt, and the language, absolutely unambiguous and free from saving clauses, which the legislature 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. It matters not what the motive of a transfer by will may be, whether to pay a debt, discharge some moral obligation, or to benefit a relative for whom the testator entertains a strong affection, if the devise or bequest be accepted 54 Act of 1892. $ 1 Nature and basis of tax. by the beneficiary, the transfer is made by will and the State by the statute in question makes a tax to impinge upon that performance." BASIS OP TAX. The tax should be imposed upon the property in the form in which it stood when the testator died. Matter of Living- ston, 1 App. Div. 568, 72 St. Eep. 552, 37 N. Y. Supp. 463; Matter of Button, 3 App. Div. 208, 73 St. Eep. 758, 38 N. Y. Supp. 277 ; affirmed without opinion, 149 N. Y. 618 ; Matter of Offerman, 25 App. Div. 94, 48 N. Y. Supp. 993. TAX IS ON SUCCESSION. The tax imposed is not a property tax but a tax upon the right of succession. Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, modifying 64 Hun, 639, 47 St. Eep. 47; Matter of Merriam, 141 N. Y. 479, 57 St. Eep. 593. The fiction of law that personal estate has no situs away from the person or residence of its owner is done away with, and the truth substituted as the rule of action. Matter of Romaine, 127 N". Y. 80, 27 N. B. 759, .38 St. Eep. 76, affirming 58 Hun, 109, 33 St. Eep. 784, 11 N. Y. Supp. 313. That property is not liable for a general tax does not prevent its taxation under the Inheritance Tax Act. Matter of Knoedler, 140 N. Y 377, 55 St. Eep. 666. AMOUNT OF ESTATE DETEEMINES LIABILITY TO TAXATION. Under the Act of 1885 and its subsequent amendments the term "estate" referred to the estate passing to the beneficiary and not the aggregate estate. Matter of Oager, 111 N". Y. 343; Matter of Howe, 112 N. Y. 100; Matter of Westurn, 152 N. Y. 93 ; Matter of Weed, 10 Misc. 628. But the succession tax imposed by the Act of 1892 is levied upon successors in respect to the shares to which they succeed and not upon the decedent's estate; but in so far as it depends upon the amount involved, it is the aggregate amount of the estate passing to taxable persons and not the share of any par- ticular legatee which determines the liability to or exemption from the tax. Matter of Hoffman, 143 K Y. 327, 38 N. E. 311, modifying 76 Hun, 399, 58 St. Eep. 699, 27 ¥. Y. Supp. 1086. In the Matter of Skillman (10 Misc. 642, 66 St. Eep. 140, 32 Act of 1892. 55 Test of exemption; property or interest taxable. § 1 N. Y. Supp. 780) the surrogate of Westchester county held sub- sequent to the decision in the Hoffman case that legacies of less than $10,000 passing to children are not taxable, al- though the estate aggregated more than that sum. It does not appear that any appeal was ever taken from such ruling. Under the $10,000 limitation it is the aggregate amount of the estate transferred to taxable beneficiaries, and not the amount of the particular estate, which determines whether a tax shall be imposed or not. Matter of Hoffman, 143 N. Y. 327, 62 N. Y- St. 245, 38 N. B. 311 ; followed in Matter of Gorbett, 171 N. Y. 516, 64 N. E. 209, affirming 55 App. Div. 124, 67 N. Y. Supp. 46. Thus, if in an estate of $11,000 personalty $7,000 is trans- ferred to collaterals, and $4,000 to a widow, all shares are tax- able, but if $7,000 is transferred to a bishop or domestic religious corporation and the balance to the widow no portion of the estate is taxable. Where testator leaves an estate of $829.16, giving $414.58 to his sister, and $207.29 to each of two nephews, the legacies to the nephews are not taxable, as the legacy of the sister being less than $10,000 is specifically exempted within the meaning of section 22. Matter of Bliss, 6 App. Div. 192, 39 N". Y. Supp. ' 875. The ruling in this case seems to be superseded by Matter of Gorbett, 171 N. Y. 516. See Matter of Sophie Rosendahl, p. 402, N". Y. Law Journal, April 29, 1903. The tax is imposed upon the basis of the aggregate of the property and not the amount of the separate share. A share less than $500 is taxable if all the property was of the value of $500 or over. Matter of Hall, 88 Hun, 68, 68 St. Eep. 538, 34 N. Y. Supp. 616. TEST OF EXEMPTION. In view of the definition of " property " in section 22, it is the jurisdiction of the State to subject property to taxation under the general taxing power, and not whether it has been exercised, which is the test of exemption under section 1. Matter of Sher- man, 153 1ST. Y. 1, 46 N. E. 1032, affirming 15 App. Div. 628. PROPERTY OR INTEREST TAXABLE. Application of act. — The Act of 1892 was a revision of the whole law relative to the taxation of transfers of property. The legislature added section 22 to the law limiting the words Act of 1892. § 1 Property or interest taxable. " estate " and " property " to property " over which this State has jurisdiction for the purposes of taxation." In construing this section in The Matter of Sherman, 153 N. Y. 1, 46 N. E. 1032, affirming 15 App. Div. 628, the court held that bonds of the United States, though held taxable under the Act of 1885 and the several amendments thereto, were exempted by force of such provision. Said Act of 1892 further provided for the taxing of the estate of nonresident decedents, although such nonresi- dents were not the owners of real estate within the State at the time of death, reference to which will be found under "Non- residents," post, p. 64. Property of resident. — Personal property of a resident dece- dent wherever situate is taxable. Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81 ; Matter of Corning, 3 Misc. 160, 51 St. Eep. 265, 23 N: Y. Supp. 285. Personal property of a resident without the State. — Personal property of a resident, which is located without the State, is tax- able, although the property passes to foreign heirs or next of kin. Matter of Dingman, 66 App. Div. 228, 72 N. Y. Supp. 694. Where beneficiaries reside without the State. — When the trans- fert&s by a resident of property within this State it is not import- ant whether the beneficiaries reside in this State or elsewhere. Matter of Green, 153 K Y. 223, 47 1ST. E. 292, reversing 7 App. Div. 339, 40 N. Y Supp. 1019. Stocks of foreign corporations owned by a resident decedent are taxable. Matter of Merriam, 141 K Y. 479, 57 St. Eep. 593, 36 N. E. 505. life insurance policies. — Life insurance policies held by the testator at the time of his death, and payable to the testator, his executor, administrator, or assigns, or to his legal representatives, are taxable. Matter of Enoedler, 140 N. Y. 377, 55 St. Eep. 666. Good will of business. — See Matter of Jones, 69 App. Div. 237, supra, -p. 13. Judgment against heir or legatee. — See Matter of Smith, 14 Misc. 169, supra, p. 13. Note of legatee, included in residue. See Matter of Tuigg, 15 Supp. 548, 2 Connoly, 633, supra, p. 13. Equity in mortgaged lands. — See Matter of Kene, 8 Misc. 102, 60 St. Eep. 163, 29 N". Y. Supp. 1078, supra, p. 13. Interest in realty of joint-stock association. — See Matter of Jones, 172 N. Y. 575, reversing 69 App. Div. 237, 74 N. Y. Supp. 702, supra, p. 13. Act of 1892. 57 Property or interest taxable. § 1 Bequest for masses. — See Matter of Black, 5 N. Y. Supp. 452, 1 Connoly, 477, supra, p. 14. Debts due from legatee. — Debts due to the estate from a legatee are to be included in the taxable assets. Matter of Bart- lett, 4 Misc. 380, 25 Supp. 990. Partnership agreement. — An agreement between two partners that all the property held by them in their joint or several names is held and owned by them jointly, held to be a mere partner- ship agreement; and where the interest of one of the partners dying intestate was distributed to his children without objection from the surviving partner, such transfers are taxable and the appraiser is not justified in making any deduction on account of such alleged joint-tenancy agreement. Matter of Wormser, 51 App. Div. 441, modifying 28 Misc. 608, 59 N. Y. Supp. 1088. Interest in fund in partition action. — An interest in a fund deposited to the credit of a partition action is taxable as personal property. Matter of Stiger, 7 Misc. 268, 58 St. Eep. 529, 28 N. Y. Supp. 163. legacies for services. — Legacies for services, if accepted, are taxable. Matter of Doty, 7 Misc. 193, 56 St. Eep. 626, 27 N. Y. Supp. 653. A transfer by will, subjected to taxation under the Act of 1892, is not limited to property gratuitously given by will, but extends to a testamentary transfer in payment of a debt, if the devise or bequest be accepted by the beneficiary. Matter of Gould, 156 N. Y. 423, 51 N. B. 287, modifying 19 App. Div. 352, 46 N. Y. Supp. 506. Beat in Stock Exchange. — The transfer of a seat in the New York Stock Exchange, owned by a nonresident decedent, is tax- able. Matter of Glendinning, 68 App. Div. 125, 74 N. Y. Supp. 190; affirmed without opinion, 171 N. Y. 684. Legacies to United States. — A legacy to the United States is taxable under chapter 399, Laws of 1892, or the earlier statutes. Although the testator died January 30, 1889, and the tax was assessed February 16, 1893, the court held that " when this tax was assessed it was under the said law of 1892, construed as amending the previous statutes." Matter of Merriam, 141 N. Y. 479, 57 St. Eep. 593, affirming 73 Hun, 587, 56 St. Eep. 159, 26 N. Y. Supp. 191 ; Matter of Cullom, 145 N. Y. 593, affirming 76 Hun, 610, 27 N. Y. Supp. 1105, supra, p. 14. Property of nonresident. — See decisions under heading " Nonresidents," post, p. 64. Act of 1892. § 1 Property or interest not taxable. PROPERTY OR INTEREST NOT TAXABLE. United States government bonds. — United States bonds, by force of the provisions of section 22, limiting the meaning of the words " estate " and " property " to property " over which this State has jurisdiction for the purpose of taxation," were held not taxable under the Act of 1892. Matter of Sherman, 153 N. Y. 1, 46 N. B. 1032, affirming 15 App. Div. 628 ; Matter of Coogan, 27 Misc. 563; affirmed without opinion, 45 App. Div. (528, 162 1ST. Y. 613. Contra, Matter of Carver, 4 Misc. 592. By Laws of 1898, chap. 88, in effect March 21, 1898, the words " over which this State has jurisdiction " were omitted from the section and subsequently government bonds have been taxable. Matter of Plummer, 30 Misc. 19; affirmed, 47 App. Div. 625, 161 N. Y. 631, 178 U. S. 115. Bequest with precatory words of devise in favor of an exempt corporation. — An absolute bequest with precatory words of devise that the legacy be applied to certain exempt corporations, held to convert the legatee into a trustee and to operate to ex- empt the bequest. Matter of Murphy, 4 Misc. 230. Interest which vested prior to enactment of transfer tax act. — Interests in estates which became vested prior to the pas- sage of the Transfer Tax Act, and cannot be divested, are not subject to taxation under it. Matter of Travis, 19 Misc. 393, 44 N. Y. Supp. 349. Equitable conversion of realty. — - An equitable conversion of realty is not taxable as personalty. Matter of Cobb, 14 Misc. 409. The fact that the will works an equitable conversion does not make the value of the realty taxable. The transfer tax is to be imposed upon the property transferred as the testator leaves it. Matter of Sutton, 3 App. Div. 208, 73 St. Eep. 758. 38 N". Y. Supp. 277; affirmed without opinion, 149 N". Y. 618. Decisions under Act of 1885 and amendments applicable to the Act of 1892. Real estate of resident without the State. See Lorillard v. People, 6 Dem. 268, 19 St. Rep. 263, supra, p. 14; Matter of Swift, 137 N". Y. 77, 50 St. Rep. 81, supra, p. 14. Undistributed share of resident in nonresident estate. See Matter of Thomas, 3 Misc. 388, 24 N". Y. Supp. 713, supra, p. 14. Act of 1892. 5!) Transfers, in contemplation of, at, or after, death. § 1 A legacy for home during life. See Matter of Hulse, 15 N. Y. Supp. 770, 39 St. Rep. 402, supra, p. 14. " Bequest for burial lot. See Matter of Vinot, 7 N. Y. Supp. 517, 26 St. Eep. 610, followed in Matter of Edgerton, 35 App. Div. 125 ; affirmed without opinion, 158 N. Y. 671, supra, p. 15. Increase of interest after death. See Matter of Vassar, 127 N. Y. 1, 37 St. Eep. 239, supra, p. 15. TRANSFERS IN CONTEMPLATION OF DEATH OR TO TAKE EFFECT AT OR AFTER DEATH. Property passing under a trust deed, the net income to go immediately to the beneficiaries and the principal on a certain date to be paid over to designated persons, the deceased reserving the right " to revoke and annul the same during my life time," held not taxable as not made in contemplation of death or in- tended to take effect in possession or enjoyment at or after death. Matter of Masury, 28 App. Div. 580, 51 N. Y. Supp. 331 ; af- firmed, 159 N. Y. 532. Note. — Effect of above decision limited in Matter of Bost- wick, 160 N. Y. 489. Property passing under a trust deed, providing that the net income was to go to the donor during life, and after his death in a certain specified manner, held subject to tax upon his death. Matter of Masury, 28 App. Div. 580, 51 N. Y. Supp. 33, affirmed, 159 N. Y. 532. Subdivision 3 of section 1 is to be restricted to grants or gifts causa mortis mentioned in the preceding portion of the sub- division, and does not include transfers by will or intestacy so as to subject to taxation rights of succession which accrued be- fore the statute took effect. Matter of Seaman, 147 N. Y. 69, 41 N. E. 401, 69 St. Eep. 316, reversing 87 Hun, 619; Tall- madge v. Seaman, 85 Hun, 242, 66 St. Eep. 302, 32 N. Y. Supp. 906. A trust deed did not constitute an absolute gift of the grant- or's property during his life, so as to exempt the transfer from taxation under the Act of 1892, 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 he continued to be able to enjoy it or to manage and dispose of it as effectually as he might previously have done by the reserva- tion to himself of powers to alter or amend the trust by notice to the trustee, to withdraw or exchange any securities and to 60 Act of 1892. § 1 Transfers, in contemplation of, at, or after, death. control the acts of the trustee in selling or disposing of the se- curities, or with respect to investments; Matter of Masury, 28 App. Div. 580, affirmed, 159 N. Y. 532, distinguished. Matter of Bostwick, 160 N. Y. 489, 55 N. B. 208, affirming 38 App. Div. 223, 56 N. Y. Supp. 495. The creation of a trust, reserving to the grantor the incoma during his life, and after his death distributing the property among designated remaindermen, is a transfer deemed " in- tended to take effect in possession or enjoyment at or after the death " of the grantor or donor, and is therefore taxable. Mat- ter of Green, 153 N. Y. 223, 47 N. E. 292, reversing 7 App. Div. 339, 40 N. Y. Supp. 1019, 75 St. Eep. 403. Stocks were transferred in consideration of an agreement evidenced by a bond of the transferees conditioned for the pay- ment of an annuity to the grantor and certain other persons, under which the stock was to be deposited as collateral for the performance of the agreement. In ease of default, the deposit- ary might collect sufficient dividends to pay the annuities, or, if necessary, sell a portion of the stock. Held a gift inter vivos and not taxable. Matter of Edgerton, 35 App. Div. 125, 54 N. Y. Supp. 700, affirmed without opinion, 158 N. Y. 671. Deeds of real property executed by an aunt seventy-nine years of age, eight days before death, who was suffering from consump- tion from which she knew she never would recover, to her nieces, are to be regarded as gifts inter vivos, made in contemplation of death, and the property transferred is taxable. Matter of Bird- sail, 22 Misc. 180, 49 1ST. Y. Supp. 450, affirmed without opin- ion, 43 App. Div. 624. By a trust deed, executed in 1892, Eugene G. Cruger trans- ferred to trustees certain personal property, with directions to collect the income and pay to his daughter the sum of $1,200 annually and any balance of income to himself, and at his death to pay over the fund to the daughter, if living, or if she be dead, to her issue, or in default of issue, to such per- sons as she should by will appoint, or in default of appoint- ment, to such persons as would be entitled to take if she had died intestate and in possession of the property, except her mother. The daughter died September 2, 1896, intestate, un- married, without issue, and without having executed the power of appointment. The creator of the trust died April 4, 1898. Held, that the trust fund vested in the daughter's next of kin as remaindermen upon the death of the father, and such re- mainders were subject to tax under Laws 1892, chap. 399, § 1, Act of 1892. 61 Future and contingent interests. § 1 subd. 3; Matter of Green, 153 1ST. Y. 223, followed. Matter of Cruger, 54 App. Div. 405, affirmed without opinion, 166 N. Y. 602. Decisions under Act of 1885. — Matter of Crosby, 46 St. Rep. 442, 20 N. Y. Supp. 62 ; also Matter of Johnson, 47 St. Rep. 391, 19 N. Y. Supp. 963 ; also Matter of Edwards, 85 Hun, 436, 66 St. Rep. 231, 32 N". Y. Supp. 901, affirmed without opinion, 146 N". Y. 380. See p. 15. FUTURE AND CONTINGENT INTERESTS. Application of act. — Under the Act of 1892 the assessment and taxation of contingent or future estates and interests, where the value is not ascertainable, is not to be made at the deceden": death, but is postponed until such estates vest in the actual en- joyment or possession of the beneficiary. Matter of RoorzwH 143 N. Y. 120, 62 St. Rep. 130. The provision of the act _„ . '" such tax shall also be imposed when any such person or cor- poration becomes beneficially entitled, in possession or expect- ancy, to any property or the income thereof by any such trans- fer, whether made before or after the passage of the act," was held, in Matter of Seaman, 147 N. Y. 69, not to be retroactive in its effect, and that a remainder, created by will of testator dying in 1876, although not actually vesting in possession until after the enactment of the Act of 1892, was not taxable. Vested estates or remainders are to be taxed immediately upon dece- dent's death. Matter of Vinot, 7 N". Y. Supp. 517 ; Matter of Cogswell, 4 Dem. 248 ; Matter of Grover, 34 N. Y. Supp. 474. When, appraised and taxable. — Under the Act of 1885 it was held that contingent interests were not to be appraised or be subjected to tax until the contingency happened or defeating contingency has been rendered impossible. Matter of Stewart, 131 N. Y. 274, 43 St. Rep. 171, reversing in part 61 Hun, 544, 41 St. Rep. 144, 16 N. Y. Supp. 388; Matter of Cager, 111 1ST. Y. 344, affirming 46 Hun, 657; Matter of Curtis, 142 N. Y. 219, 58 St. Rep. 348, affirming 73 Hun, 185, 56 St. Rep. 113, 25 K. Y. Supp. 909. And even when the value of a vested re- mainder is affected by a possible contingency, a tax cannot be presentlv charged upon the remainder. Matter of Roosevelt, 143 N". Y. 120, 62 St. Rep. 130, 25 L. R. A. 695, affirming 76 Hun, 257, 59 St. Rep. 100, 27 N. Y. Supp. 741; Matter of Sloane, 154 N. Y. 109, 47 N. E. 978, affirming 19 App. Div. 411, 46 N". Y. Supp. 264. 62 Act of 1892. Future and contingent interests. Contingent and expectant estates can only be taxed when they become fixed and actual. Matter of Hoffman, 143 N. Y. 327, affirming on this point 76 Hun, 399, and reversing 5 Misc. 439, 26 N. Y. Supp. 888. Where a widow is given the use of the whole estate for life, and in case of her remarriage the use of one-half only, the value of her estate or of the remainder cannot be ascertained until after her death or remarriage. Matter of Millward, 6 Misc. 425, 57 St. Rep. 833, 27 N. Y. Supp. 286. Partnership real estate with discretionary power of sale. — Where testator's property consisted largely of partnership real estate, and he clothed his executors with discretionary power as to the manner and time of disposing of it, the collection of the tax was properly postponed until the parties entitled thereto came into actual possession or enjoyment. Matter of Wheeler, 1 Misc. 450, 51 St. Eep. 513, 22 N. Y. Supp. 1075. Remainders created by will of testator who died prior to act not taxable. — The right of the State attaches when the right of succession accrues, but may not be enforced in advance of that future possession and enjoyment, or indefeasible ownership, which identifies the person who ought to pay. A remainder created by will of testator, dying in 1876, although not actually vesting in possession until after the enactment of chapter 399 of the Laws of 1892, is not taxable. Matter of Seaman, 147 N. Y. 69, 69 St. Rep. 316, reversing 87 Hun, 619 ; Tallmadge v. Seaman, 85 Hun, 242, 66 St. Rep. 302, 32 N. Y. Supp. 906, followed; Matter of Gibson, 33 App. Div. 628, affirmed, without opinion, 157 1ST. Y. 680, on authority of Matter of Seaman, supra. Where a will gives property to one for life, with power of dis- position during life and by will, and provides that the residue remaining at his death undisposed of shall pass to certain per- sons named, and the life-tenant by will directs his. executors to distribute the property "according to the provisions of the will " of the first testator by delivering the same to the executors named in that will for that 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 where death of first testator occurred prior to legislation taxing transfers by will. Matter of Langdon, 153 1ST. Y. 6, 46 N. E. 1034, affirming 11 App. Div. 220, 43 N. Y. Supp. 419. Property passing under power of appointment. — It was held Act of 1892. 63 Future and contingent interests. § 1 in Matter of Stewart 131 N. Y. 274, 43 St. Rep. 171, reversing in part 61 Hun, 544, 41 St. Eep. 144, 16 N. Y. Supp. 388, de- cided under the Act of 1885, that the property a person takes upon the execution of a power of appointment contained in a will, if such person is not exempted, is taxable. A bequest to the testator's widow for life, with remainder to his son and daughter, subject to a power of appointment by the widow, who exercised it in favor of the daughter by will, ad- mitted to probate the same day the daughter dies, vests in the daughter upon the death of the father, passes under the will of the former to her residuary legatee and is subject to the trans- fer tax. Decision under Act of 1892. Matter of Chabot, 167 N. Y. 280, 60 N. E. 598, affirming 44 App. Div. 340, 60 K Y. Supp. 927. Bequest under power of appointment created prior to act not taxable. — Bequests in the exercise of a power by will, executed after the enactment of Laws 1892, chap. 399, but created by will which took effect before the enactment of any taxable transfers 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 ap- pointees must be read. .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, 55 N. E. 850, reversing 43 App. Div. 188, 59 N. Y. Supp. 362, overruling in effect Matter of Brooks (Surr. Ct.), 65 St. Rep. 255, 32 N. Y. Supp. 176. Attention, however, is directed to the statement in the opinion to the effect that this case is of no special importance, for the reason that since the death of the donee of the power, by chapter 284 of the Laws of 1897, section 220 of the Transfer Tax Act has been amended by the addition of subdivision 5, making the exercise of the power the act constituting the transfer. Subdivision 3 of act not retroactive — Interest transferred be- fore passage not taxable. — Subdivision 3 of section 1 of chapter 399, Laws 1892, is not retroactive, and does not apply to a bene- ficial interest transferred before its passage, although such inter- est did not vest in actual possession until thereafter. Matter of Forsyth, 10 Misc. 477, 65 St. Rep. 254, 32 N. Y. Supp. 175. life estate in property with remainder to a sister. — When property is bequeathed to a mother for life, with remainder to a sister, the entire legal and equitable estate vests in the sister upon the death of the mother, and a residuary legatee of the sister takes such remainder subject to the transfer tax. Matter 64 Act of 1892. Nonresidents. of Chabot, 167 N. Y. 280, 60 K E. 598, affirming 44 App. Div. 340, 60 N. Y. Supp. 937. Vested remainder taxable at full value less life estate. — A valid vested remainder is taxable at its value, which is the value of the whole estate less the life estate. Matter of Lange (Surr. Ct.), 55 1ST. Y. Supp. 750. Remainder taxable without deducting preceding life estate. — Where a testator died November 15, 1892, giving the in- come of his estate to his widow for life, with remainder to his children, held on the death of the wife, in 1901, that the re- mainders which had not been taxed under the Act of 1892 were taxable at their full value without deduction of the life estate of the widow. Matter of Connoly, 38 Misc. 533. The above decision seems to be overruled in effect by Matter of Meyer, 83 App. Div. 381, post, p. 144. Time of transfer. — The death of the testator is the time of the transfer of title to a legacy in remainder, where there is no uncertainty who will take in remainder, although there is un- certainty when the legacy will be paid over to the remainderman. Decision under Act of 1887. Matter of Shane, 154 N. Y. 109, 47 N. B. 978, affirming 19 App. Div. 411, 46 1ST. Y. Supp. 264. NONRESIDENTS. Application of Act. — The Act of 1885 did not apply to transfers of property made by nonresidents. Matter of Enston, 113 N. Y. 174, 22 St. Eep. 569, reversing 46 Hun, 506; Matter of Hall (Gen. T.), 8 N. Y. Supp. 556; Matter of Tu- lane, 51 Hun, 213, 21 St. Rep. 191, 4 N. Y. Supp. 36. The law was first applied to nonresidents by the amendment of 1887, chapter 713, in effect June 25, 1887, but its application was limited by the language of section fifteen, which required the presence of real property, within the State, in order to confer jurisdiction on a surrogate. The result was that personal prop- erty within the State, although clearly within the terms of the law, was not taxable, unless there was also real property upon which the jurisdiction of a surrogate could be based. Matter of Embury, 19 App. Div. 214; affirmed, without opinion, 154 N. Y. 746. The Act of 1892, chap. 399, in effect May 1, 1892, in section 1 thereof, changed the law in this respect, and ex- pressly imposed a tax upon the transfer of property within the State of a nonresident, eliminating also by section 10 thereof the provision requiring the ownership of real property within Act of 1892. 65 Nonresidents; taxable transfers. § 1 the State as the basis of a surrogate's jurisdiction. The decisions under the Act of 1887, holding a particular class of property taxable or nontaxable, are of equal force under the Act of 1892, except such as held personalty nontaxable by reason of there being no realty within the State. Taxable transfers of nonresidents. — Personal property habitu- ally kept or invested in the State. Decisions under Act of 1887. Matter of Bomaine, 127 N. Y. 80, 38 St. Eep. 76, affirming 58 Hun, 109, 33 St. Eep. 784, 11 N. Y. Supp. 313; Matter of Phipps, 143 N. Y. 641, 37 N. E. 823, affirming, without opinion, 77 Hun, 325, 59 St. Eep. 769, 28 N. Y. Supp. 330. Stock of domestic corporation, the certificates of which were within or without the State at time of death. Decision under Act of 1892. Matter of Bronson, 150 N. Y. 1, 44 N. B. 707, 55 Am. St. Eep. 632, 34 L. E. A. 238, reversing on this point 1 App. Div. 546, 73 St. Eep. 203, 37 N. Y. Supp. 476 ; Matter of Whiting, 150 1ST. Y. 27, 44 N". E. 715, modifying 2 App. Div. 590, 73 St. Eep. 814, 38 1ST. Y. Supp. 131. Bonds of foreign or domestic corporations within the State at time of death, both registered and coupon. Decision under Act of 1892. Matter of Whiting, 150 N. Y. 27, 44 N. E. 715, 55 Am. St. Eep. 640, 34 L. E. A. 232, modifying 2 App. Div. 590, 73 St. Eep. 814, 38 K Y. Supp. 131 ; Matter of Morgan, 150 N. Y. 35, 44 N". E. 1126, affirming 2 App. Div. 619; Matter of Gibbes, 40 Misc. 581, decided under Act of 1887. The latter case was, however, reversed on appeal to the Appellate Division, as far as the taxability of foreign bonds on deposit in this State is concerned. Matter of Gibbes, 84 App. Div. 510. This ap- pellate decision is limited in its application to estates of decedents dying prior to the passage of the Act of 1892. Money deposited in a bank within the State, although com- mingled with trust funds in an account opened by decedent as trustee. Decision under the Act of 1892. Matter of Houdayer, 150 N. Y. 37, 44 N. E. 718, 55 Am. St. Eep. 642, 34 L. E. A. 235, reversing 3 App. Div. 474, 73 St. Eep. 784, 38 N. Y. Supp. 323. Money of a nonresident deposited in savings banks in this State, money in the hands of his attorney in this State, and bonds secured by mortgage on lands in this State are taxable. Decision under Act of 1892. Matter of Burr, 16 Misc. 89, 74 St. Eep. 490, 38 N. Y. Supp. 811. 5 66 Act of 1892. § 1 Nonresidents; nontaxable transfers. It does not appear whether the bonds above referred to were within or without the State. If without the State, they were exempt under the later decision under the Act of 1896 in Mat- ter of Preston, 75 App. Div. 250. But see Blaclcstone v. Miller, TJ. S. , considered on p. 134. A bank account and bond and mortgage within the State. Decision under Act of 1887. Matter of Clarice (Surr. Ct), 9 1ST. Y. Supp. 444, 2 Connoly, 183. 'Nontaxable transfers of nonresidents. — Shares of stock of foreign corporation, although within the State at time of death. Decision under Act of 1887. Matter of James, 144 N. Y. 6, 62 St. Eep. 855, 38 N. E. 961, affirming 77 Hun, 211, 59 St. Eep. 768, 28 N. Y. Supp. 351. Bonds of domestic corporations, owned by a nonresident de- cedent and not within this State at time of his death, are not subject to taxation. Decision under Act of 1892. Matter of Bronson, 150 N. Y. 1, 44 N. B. 707, affirming on this point 1 App. Div. 546, 73 St. Eep. 203, 37 N. Y. Supp. 476. Policies issued by a domestic life insurance company upon the life of a nonresident, and which were not within this State at the time of his death, are not subject to tax. Decision un- der Act of 1892. Matter of Abbett, 29 Misc. 567, 61 1ST. Y. Supp. 1067. The right to a legacy given by the will of a resident to a non- resident. Decision under Act of 1887. Matter of Phipps, 143 JT. Y. 641, 37 N. E. 823, affirming, without opinion, 77 Hun, 325, 59 St. Eep. 769, 28 N. Y. Supp. 330. Debts due a nonresident from a resident. Matter of Phipps, supra. But see Blaclcstone v. Miller, TJ. S. , considered on p. 134. Bonds of the United States within the State. Matter of Whiting, 150 N. Y. 27, 44 N. E. 715, modifying 2 App. Div. 590, 73 St. Eep. 814, 38 N. Y. Supp. 131, 34 L. E. A. 232, 55 Am. St. Eep. 640. Personal property, not taxable under Act of 1887, located within the State and owned by a nonresident, who died prior to May 1, 1892, the date when chapter 399 of the Laws of 1892 went into effect, is not liable to taxation under that law, al- though the property was not removed from this State until after that date. Matter of Pettit, 65 App. Div. 30, 72 N. Y. Supp. 469; affirmed, on opinion below, 171 N. Y. 654. After May 1, 1892, the ownership of real property within the State was not necessary to the jurisdiction of a surrogate. Act of 1892. 67 Exemption of corporations. Taxation in State of residence does not relieve. — The fact that a nonresident's estate is taxed where decedent died a resi- dent will not exempt the property in this State. Matter of Burr, 16 Misc. 89, 74 St. Eep. 490, 38 N. Y. Supp. 811. Appropriation of property without State to pay specific legacies. — Where nonresident decedent's estate is partly within and partly without the State, the executors may elect to ap- propriate that portion without the State to the payment of spe- cific legacies given to collaterals and charities, and thus avoid the tax thereon, although the property within the State passes to persons not taxable. It would seem, however, that such legacies must be actually paid out of the property elected to be appropriated to their payment. Decision under Act of 1887. Matter of James, 144 N. Y. 6, 62 St. Eep. 855, affirming 77 Hun, 211, 59 St. Eep. 768, 28 N. Y. Supp. 351. The test of what constitutes property within this State for the purposes of a succession tax is, according to Judge Vann, " where the right, whatever it may be, has a money value and can be owned and transferred, but cannot be enforced or con- verted into money against the will of the person owning the right without coming into this State." Matter of Houdayer, 150 N. Y. 37, 44 N. E. 718, 55 Am. St. Eep. 642, 34 L. E. A. 325, reversing 3 App. Div. 474, 73 St. Eep. 784, 38 N. Y. Supp. 323. This reasoning does not appear to have been concurred in by a majority of the judges. However, see Blachstone v. Mil- ler, U. S. , considered on p. 134, in which the court goes so far as to say that jurisdiction over the debtor makes the debt property within this State for the purposes of a succession tax. THE EXEMPTION OF CORPORATIONS AND INSTITUTIONS. Apart from religious corporations, expressly exempted by sec- tion 2, other corporations are exempt by virtue of section 1, which imposes a tax only on corporations " not exempt by law from taxation on real or personal property," and Laws 1890, chap. 553, amending Laws 1889, chap. 191, in effect June 7, 1890, expressly exempting from the Collateral Inheritance Tax Law a nonbusiness corporation not deriving a profit from its capital or otherwise, or having the right of making dividends or distributing profits among its members. For full discussion of this act, and for decisions rendered under the Act of 1885, as amended, see pp. 21, 22. 68 , Act of 1892. § 2 Exceptions and limitations. § 2. Exceptions and limitations — When the property or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, hus- band, wife, child, brother, sister, wife- or widow of a son or the husband of a daughter, or any child or chil- dren adopted as such in conformity with the laws of this state, of the decedent, grantor, donor or vendor, or to any person to whom any such decedent, grantor, donor or vendor for not less than ten years prior to such transfer stood in the mutually acknowledged re- lation of a parent or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wed- lock, such transfer of property shall not be taxable under this act, unless it is personal property of the yalue of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property. But any property heretofore or hereafter devised or bequeathed to any person who is a bishop or to any religious corporation shall be exempted from and not subject to the provisions of this act. Revised from L. 1885, chap. 483, § 1, as amended by L. 1887, chap. 713; L. 1891, chap. 215, and L. 1892, chap. 169, in effect from May 1, 1892, to June 15, 1896. "Lineal descendants" means only the direct descendants of the ancestor and not the children of brothers and sisters. De- cision under same language in Act of 1885. Matter of Miller, 45 Hun, 244, 10 St. Eep. 341; Matter of Smith (Surr. Ct.), 5 St. Rep. 380. Husband of a daughter. — Limitation applies although daughter dies before testator. Decisions under Act of 1885. Matter of McGarvey (Surr. Ct.), 6 Dem. 145, 20 St. Eep. 135; Matter of Woolsey (Surr. Ct.), 6 Dem. 145, 19 Abb. N. C. 232. The words "husband of a daughter" include the surviving husband of a daughter who has died, even though the husband has remarried. Decision under Act of 1892. Matter of Bay, 13 Misc. 480. Act of 1892. 69 Exemptions; relation of parent and child. § 2 EXEMPTION OF RELIGIOUS CORPORATIONS AND BISHOPS. This exemption was made by Laws 1892, chap. 169, amending § 1 of the Act of 1887, in effect March 19, 1892, and was incor- porated without change in the Act of 1892. The amendment was retroactive. Retroactive effect. — Under the statute which provides that any property theretofore or thereafter devised or bequeathed to any person who is a bishop, or to* a religious corporation, shall be exempt and not subject to tax, any property so passing is released from the tax, whether such devise had become operative prior to the passage of the act or subsequent thereto. Decided under Laws 1892, chap. 169. Roman Catholic Church of the Transfiguration v. Niles, 86 Hun, 221, 66 St. Eep. 759, 33 N. Y. Supp. 243. Exemption applies only to domestic religious corporations. — Matter of Smith, 77 Hun, 134, 28 jST. Y. Supp. 476; Matter of Taylor, 80 Hun, 589, 30 N. Y. Supp. 582, affirming 6 Misc. 277 ; Matter of Balleis, 144 N. Y. 132, 63 St. Eep. 27, affirming 78 Hun, 275, 60 St. Eep. 792. Applies to bishop, resident or nonresident.— Matter of Palmer, 33 App. Div. 307, 53 JST. Y. Supp. 847; affirmed, on opinion below, 158 N. Y. 669. Bequest to bishop " or his living successor." — A bequest " to Bishop Wm. Taylor or his living successor" is in the event of his death a gift to "his living successor personally," and not to a corporation sole, and is exempt. Matter of Palmer, supra. ADOPTED CHILDREN; MUTUALLY ACKNOWLEDGED RELATION OF PARENT AND CHILD. This provision was enacted by the amendment of 1887, chap. 713, in effect June 25, 1887. It was re-enacted in the Act of 1892, without change of substance. As originally enacted it did not have a retroactive effect, but was given such effect by Laws 1889, chap. 479, amending § 25 of the Act of 1885. Matter of Miller, 110 N. Y. 216, 18 St. Eep. 226, affirm- ing 47 Hun, 394; Matter of Cager, 111 N. Y. 343, 19 St. Eep. 497, affirming 46 Hun, 657; Matter of Thompson (Surr. Ct), 6 Dem. 211, 14 St. Eep. 487; Matter of Ryan (Surr. Ct.), 3 K Y. Supp. 136; Matter of Thomas, 3 Misc. 388, 24 N. Y. Supp. 713; Matter of Kemeys, 56 Hun, 117, 29 St. Eep. 916, 9 K Y. Supp. 182. Act of 1892. § 2 Relation of parent and child. Formal adoption is unnecessary to establish the relation of parent and child. Matter of Butler, 58 Hun, 400, 34 St. Eep. 189, 13 N. Y. Supp. 201; affirmed, without opinion, 136 N. Y. 649 ; Matter of Spencer, 1 Connoly, 208, 21 St. Eep. 145, 4 N. Y. Supp. 395; Matter of Stilwell (Surr. Ct.), 34 K. Y. Supp. 1123, 69 St. Eep. 381. Adoption under the laws of another State is sufficient to es- tablish the relation of parent and child. Matter of Butler, supra. t A legacy to a child of adopted child is not exempt. Matter of Bird (Surr. Ct), 11 JN T . Y. Supp. 895, 32 St. Eep. 899; Matter of Moore, 90 Hun, 162, 70 St. Eep. 286. Provision not limited to illegitimate children. — The exemp- tion based upon the mutually acknowledged relation of parent and child is not limited to illegitimate children, but extends as well to persons not of the blood of the testator between whom the relation of parent and child has been mutually recognized for ten years prior to the death of the testator. Matter of Beach, 154 N. Y. 242, reversing 19 App. Div. 630, 46 N. Y. Supp. 354; also reversing in effect Matter of Hunt, 86 Hun, 232, 66 St. Eep. 812, 33 JST. Y. Supp. 256, and following Matter of Butler, 58 Hun, 400, 12 N. Y. Supp. 201, 34 St. Eep. 189 ; Matter of Nichols, 91 Hun, 134, 36 N. Y. Supp. 538, 71 St. Eep. 634. Adults at inception of relation not excluded. — The fact that a person was, at the inception of the mutually acknowledged relation of parent and child, an adult, does not exclude him from the exemption. Matter of Beach, 154 N. Y. 242, reversing 19 App. Div. 630, 46 N". Y. Supp. 354. Illustrative decisions. — The relation of parent and child be- tween an uncle and his nieces held not established, although they lived together in the same family. Matter of Moulton, 11 Misc. 694, 67 St. Eep. 400, 33 N. Y. Supp. 578. Nieces having independent estates lived with a childless aunt for thirteen years, who was also their guardian, and charged them unusually high rates for board. Held, that mutually ac- knowledged relation of parent and child did not exist, although she often addressed them " my dear girls." Matter of Birdsall, 22 Misc. 180, 49 N. Y. Supp. 450; affirmed, without opinion, 43 App. Div. 624. Where a girl of six years of age was taken into testator's family and resided with him continuously for fifty years, and was treated by him generally in the same manner as his daugh- ters, an annuity to her is held exempt, although he referred to Act of 1892. 71 Lien of tax and payment thereof. § 3 her in his will as " friend " and not as daughter. Matter of Wheeler, 1 Misc. 450, 51 St. Kep. 513, 22 N. Y. Supp. 1075. See also cases under Act of 1887, p. 20; Matter of Spencer (Suit. Ct.), 4 N. Y. Supp. 395, 21 St. Eep. 145, 1 Connoly, 208; Matter of Capron (Surr. Ct.), 10 N. Y. Supp. 23, 30 St. Eep. 948; Matter of Sweetland (Surr. Ct.), 20 N. Y. Supp. 310, 1 Pow. Surr. Eep. 200, 47 St. Eep. 287. Testimony as to relation; effect of Code, § 829. — At the hear- ing before the appraiser upon the question whether the dece- dent stood in the mutually acknowledged relation of a parent to a legatee, the legatee may testify as to " confidential com- munications and acknowledged relations growing out of an agreement between " him and the decedent for the purpose of showing the relation. Section 829 of the Code does not apply. Matter of Brundage, 31 App. Div. 348, 52 N. Y. Supp. 362. § 3. Lien of tax and payment thereof. — Every such tax shall be and remain a lien upon the property trans- ferred until paid and the person to whom the property is so transferred, and the administrators, executors and trustees of every estate so transferred shall be personally liable for such tax until its payment. The tax shall be paid to the treasurer or comptroller of the county of the surrogate having jurisdiction as herein provided ; and said treasurer or comptroller shall give, and every executor, administrator or trustee shall take, duplicate receipts from him of such payment, one of which he shall immediately send to the comptroller of the state, whose duty it shall be to charge the treasurer or comptroller so receiving the tax with the amount thereof and to seal said receipt with the seal of his office and countersign the same and return it to the ex- ecutor, administrator or trustee, whereupon it shall be a proper voucher in the settlement of his accounts ; but no executor, administrator or trustee shall be entitled to a final accounting of an estate in settlement of which 72 Act of 1892. § 3 Lien of tax and payment thereof. a tax is due under the provisions of this act unless he shall produce a receipt so sealed and countersigned by the comptroller or a copy thereof certified by him, or unless a bond shall have been filed as prescribed by section seven of this act. All taxes imposed by this act shall be due and payable at the time of the trans- fer, provided, however, that taxes upon the transfer of any estate, property or interest therein limited, con- ditioned, dependent or determinable upon the happen- ing of any contingency or future event by reason of which the fair market value thereof can not be ascer- tained at the time of the transfer as herein provided shall accrue and become due and payable when the persons or corporations beneficially entitled thereto shall come into actual possession or enjoyment thereof. Revised from L. 1885, chap. 483, §§ 2, 4, 8, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. Lien of tax. — The transfer tax remains a lien upon real es- tate until the same has been paid. Decisions under Act of 1892. Kitching v. Shear, 26 Misc. 436; Frank v. Tanhauser et al., N. Y. L. J., Nov. 17, 1900. Tax on future interests, when payable. — The provision that where the fair market value of the property or interest cannot he ascertained at the time of the transfer, the tax shall become due and payable when the beneficiary shall come into actual pos- session or enjoyment, gives a practical construction to the pre- vious legislation on the subject. Matter of Roosevelt, 143 N. Y. 120, 62 St. Eep. 130, affirming 76 Hun, 257, 59 St. Eep. 100, 27 N. Y. Supp. 71-1. Credit on accounting may be refused unless executor pro- duces transfer tax voucher. Decision under Act of 1885. Mat- ter of Jones (Surr. Ct), 5 Dem. 30, 19 Abb. N. C. 221. Right to residuary bequest, when taxable.— Where property has been bequeathed by a mother to a daughter, and the daughter dies before there has been a settlement of the executors' account under the will of the mother, and, consequently, the residuary estate, if any, is unascertained, the right to receive amount to Act op 1892. 73 Discount, interest and penalty. § 4 which the daughter is entitled as residuary legatee is not pres- ently subject to tax as against her legal representatives. Matter of Ghabot, 167 N. Y. 280, 60 K E. 598, affirming 44 App. Div. 340, 60 N. Y. Supp. 927. The court said, however, at p. 284 : " When the executor of Mrs. Heyward, the mother, shall have accounted and ascertained the amount of the residuary estate in his hands, it will be his duty to see that the transfer tax is adjusted and satisfied before paying over the residue to the legal representatives of the countess." See note on future and contingent interests, p. 61. § 4. Discount, interest and penalty. — If such tax is paid within six mouths from the accruing thereof, a discount of five per centum shall be allowed and deducted there- from. If such tax is not paid within eighteen months from the accruing thereof, interest shall be charged and collected thereon at the rate of ten per centum per annum from the time the tax accrued ; unless by reason of claims made upon the estate necessary litigation or other unavoidable cause of delay, such tax can not be determined and paid as herein provided, in which case interest at the rate of six per centum per annum shall be charged upon such tax from the accrual thereof until the cause of such delay is. removed, after which ten per centum shall be charged. In all cases when a bond shall be given under the provisions of section seven of this act interest shall be charged at the rate of six per cent from the accrual of the tax until the date of pay- ment thereof. Revised from L. 1885, chap. 483, §§ 4 and 5, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. Relief from penalty will not be granted, where the only rea- sons assigned are that the executors are ignorant of the law, and that such payment will be a hardship to the legatee. Decision 74 Act of 1892. § 5 Collection of tax by executors. under Act of 1887. Matter of Piatt, 8 Misc. 144, 59 St. Eep. 485, 29 N. Y. Supp. 396. Application for remission of penalty denied. Matter of Worm- ser, 51 App. Div. 441, modifying 28 Misc. 608, 59 N. Y. Supp. 1088. For case in which interest and not penalty was charged under Act of 1887, see Matter of Moore, 90 Hun, 162, 70 St. Eep. 280, 35 N. Y. Supp. 782. Payment of interest, where death occurred before Act of 1892. — "Accrued rights" saved by section 24 include the right to pay interest, where penalty has been excused, only from the expiration of eighteen months after the death of testator, and not from the time of death, as required by section 4 of the law of 1892. Matter of F ay er weather, 143 N. Y. 114, 38 N. E. 278, €2 St. Eep. 127. Interest on tax on contingent remainder. — Interest can be charged upon a transfer tax upon an estate in remainder only from the death of the life tenant, where by the terms of the will creating the estate in remainder persons entitled to take in re- mainder cannot be determined until such time. Decision under Act of 1885. Matter of Davis, 149 N. Y. 539, 44 N. B. 183, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N. Y. Supp. 822. § 5. Collection of tax by executors, administrators and trustees.— Every executor, administrator, or trustee shall have full power to sell so much of the property of the decedent as will enable him to pay such tax in the same manner as he might be entitled by law to do for the payment of debts of the testator or intestate. Any such administrator, executor or trustee having in charge or in trust any legacy or property for distri- bution subject to such tax shall deduct the tax there- from ; and within thirty days therefrom shall pay over the same to the county treasury* or comptroller, as herein provided. If such legacy or property be not in money, he shall collect the tax thereon upon the ap- praised value thereof from the person entitled thereto. He shall not deliver or be compelled to deliver any ♦So in original Session Law. Act of 1892. 75 Refund of tax erroneously paid. § 6 specific legacy or property subject to tax under this act, to any person until he shall have collected the tax thereon. If any such legacy shall be charged upon or payable out of real property the heir or devisee shall deduct such tax therefrom and pay it to the adminis- trator, executor or trustee, and the tax shall remain a lien or charge on such real property until paid, and the payment thereof shall be enforced by the executor, ad- ministrator or trustee in the same manner that pay- ment of the legacy might be enforced, or by the district attorney under section fifteen of this act. If any such legacy shall be given in money to any such person for a limited period, the administrator, executor or trustee shall retain the tax upon the whole amount, but if it be not in money, he shall make application to the court having jurisdiction of an accounting by him, to make an apportionment, if the case require it, of the sum to be paid into his hands by such legatees, and for such further order relative thereto as the case may require. Revised from L. 1885, chap. 483, §§ 6, 7, 8, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. The fact that an estate has been distributed is no excuse for nonpayment of the tax. Decision under Act of 1885. .Matter. of Racket, 14 Misc. 282. Where a tax has been imposed, and the statute providing for its imposition is in force, it is the duty of the executors of a nonresident decedent to pay the tax or request the imposition of the tax, as the case may be, before removing the property. Citing Matter of Embury, 19 App. Div. 214, affirmed, 154 N. Y. 746 ; Matter of Hubbard, 21 Misc. 566. § 6. Refund of tax erroneously paid — If any debts shall be proven against the estate of a decedent after the payment of any legacy or distributive share thereof, from which any such tax has been deducted or upon 76 Act of 1892. § 6 Refund of tax erroneously paid. which it has been paid by the person entitled to such legacy or distributive share and such person is re- quired to refund the amount of such debts or any part thereof, an equitable proportion of the tax shall be re- paid to him by the executor, administrator or trustee, if the tax has not been paid to the county treasurer, comptroller of the city of New York or to the state treasurer, or by such treasurer, comptroller, or state treasurer, if such tax has been paid to him. When any amount of said tax shall have been paid erroneously into the state treasury, it shall be lawful for the comp- troller of this state, upon satisfactory proof presented to him of the facts, to require the amount of such er- roneous or illegal payment to be refunded to the exec- utor, administrator, trustee, person or persons who have paid any such tax in error from the treasury ; or the said comptroller may by order direct and allow the treasurer of any county or the comptroller of the city of New York to refund the amount of any illegal or erroneous payment of such tax out of the funds in his hands or custody to the credit of such taxes, and credit himself with the same in his quarterly account ren- dered to the comptroller of this state under this act; provided, however, that all applications for such re- funding of erroneous taxes shall be made within five years from the payment thereof. Revised from L. 1885, chap. 483, §§ 10, 12, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. The surrogate has power under Laws 1897, amending Laws 1896, chap. 908, to modify his order and direct a refund of tax imposed on United States government bonds under the Act of 1892, although the time to appeal has expired, and the comp- troller may be mandamused to procure the refund. Matter of Coogan, 27 Misc. 563 ; affirmed without opinion, 45 App. Div. 628 ; affirmed without opinion, 162 N. Y. 613. Act of 1892. 77 Deferred payment. It was held under Acts of 1885 and 1887 that the remedy pro- vided by the Transfer Law for securing a refund was exclusive. Matter of Howard, 54 Hun, 305, 27 St. Eep. 8, 7 N. Y. Supp. 594; Matter of Hall (Gen. T.), 7 N. Y. Supp. 595, 27 St. Eep. 133. An application to a surrogate for a refund need not be made within two years from the date of entry of order fixing tax. Section 1290 of the Code does not apply. Decision under Act of 1892. Matter of Sherar, 25 Misc. 138. While the tax remains in the hands of the county treasurer the surrogate mav direct a refund. Matter of Park, 8 Misc. 550, 60 St. Eep. 681, 29 N. Y. Supp^ 1081. § 7. Deferred payment.— Any person or corporation beneficially interested in any property chargeable with a tax under this act and executors, administrators and trustees thereof, may elect within one year from the date of the transfer thereof as herein provided not to pay such tax until the person or persons beneficially interested therein shall come into the actual possession or enjoyment thereof. If it be personal property, the person or persons so electing shall give a bond to the state in penalty of three times the amount of any such tax, with such sureties as the surrogate of the proper county may approve, conditioned for the payment of such tax and interest thereon, at such time or period as the person or persons beneficially interested therein may come into the actual possession or enjoyment of such property, which bond shall be filed in the office of the surrogate. Such bond must be executed and filed and a full return of such property upon oath made to the surrogate within one year from the date of transfer thereof as herein provided, and such bond must be re- newed every five years. Revised from L. 1885, chap. 483, § 2, in part, as amended by L. 1887, chap. 713,in effect from May 1, 1892, to June 15, 1896. Act of 1892. Commissions; liability of corporations. § 8. Taxes upon devises and bequests in lieu of com- missions.- If a testator bequeaths or devises property to one or more executors or trustees in lieu of their commissions or allowances, or makes them his legatees to an amount exceeding the commissions or allowances prescribed by law for an executor or trustee, the excess in value of the property so bequeathed or devised, above the amount of commissions or allowances pre- scribed by law in similar cases shall be taxable under this act. Revised from L. 1885, chap. 438, § 3, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. § 9. Liability of certain corporations to tax.— If a for- eign executor, administrator or trustee shall assign or transfer any stock or obligations in this state stand- ing in the name of a decedent, or in trust for a dece- dent, liable to any such tax, the tax shall be paid to the treasurer of the proper county or the comptroller of the city of New York on the transfer thereof. No safe deposit company, bank or other, institution, person or persons holding securities or assets of a decedent, shall deliver or transfer the same to the executors, admin- istrators or legal representatives of said decedent un- less notice of the time and place of such intended trans- fer be served upon the county treasurer or comptroller at least five days prior to the said transfer. And it shall be lawful for the said county treasurer or comp- troller, personally or by representative, to examine said securities or assets at the time of such delivery or transfer. Failure to serve such notice or to allow such examination shall render said safe deposit company, Act of 1892. 79 Jurisdiction of surrogate. § 10 trust company, bank or other institution, person or persons liable to the payment of the tax due upon said securities or assets in pursuance of the provisions of this act. Revised from L. 1885, chap. 483, § 11, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. Administrators are liable for the tax and corporations can transfer stock standing in the name of a nonresident decedent only at their peril until the tax thereon is paid. Decision under Act of 1887. . Matter of Romaine, 127 N". Y. 80, 38 St. Itep. 76, affirming 58 Hun, 109, 33 St. Eep. 784, 11 N. Y. Supp. 313-. § 10. Jurisdiction of the surrogate.— The surrogate's court of every county of the state having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent whose property is chargeable with any tax under this act, or to appoint a trustee of such estate or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and de- termine all questions arising under the provisions of this act, and to do any act in relation thereto author- ized by law to be done by a surrogate in other matters or proceedings coming within his jurisdiction; and if two or more surrogate's courts shall be entitled to ex- ercise any such jurisdiction, the surrogate first acquir- ing jurisdiction hereunder shall retain the same to the exclusion of every other surrogate. Every petition for ancillary letters testamentary or ancillary letters of administration made in pursuance of the provisions of article seven, title three, chapter eighteen of the Code of Civil Procedure shall set forth the name of the county treasurer or comptroller as a person to be cited as therein prescribed, and a true and correct statement of all the decedent's property in this state and the 80 Act of 1892. § 10 Jurisdiction of surrogate. value thereof; and upon the presentation thereof the surrogate shall issue a citation directed to such county- treasurer or comptroller ; and upon the return of the citation the surrogate shall determine the amount of the tax which may be or become due under the provi- sions of this act and his decree awarding the letters may contain any provision for the payment of such tax or the giving of security therefor which might be made by such surrogate if the county treasurer or comp- troller were a creditor of the decedent. Revised from L. 1885, chap. 483, § 15, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. Surrogate is taxing officer. — • The surrogate has original and exclusive jurisdiction as assessor and taxing officer in the first instance, and no power can be exercised by the Supreme Court in an equity action either to assess or determine such liability. Weston v. Goodrich, 86 Hun, 194, 67 St. Eep. 127, 33 K Y. Supp. 382. Powers of surrogate. — The Surrogate's Court has power to decide every question that may arise in a proceeding under the act which mav be necessary to fully discharge the duties im- posed upon it. Matter of Ullman, 137 N. Y. 403, 33 N". E. 480, 51 St. Bep. 1, reversing 67 Hun, 5, 50 St. Eep. 748, 21 N. Y. Supp. 758. Ancillary letters unnecessary. — 1^. is not necessary that an- cillary letters be applied for or issued in order to confer juris- diction upon the surrogate to impose a tax upon the estate of a nonresident decedent. Matter of Fitch, 160 1ST. Y. 87, 54 N. E. 701, affirming 39 App. Div. 609, 57 K. Y. Supp. 786. Where nonresident owns stock in domestic corporation. — The surrogate of the county in which a domestic corporation operates has jurisdiction to institute proceedings to fix the trans- fer tax upon the estate of a nonresident decedent who owned shares of stock in such corporation. Matter of Fitch, 26 Misc. 353 ; affirmed on other point, 39 App. Div. 609, 160 N. Y. 87. Shares of stock in a domestic corporation transferred under the will of a nonresident and taxable under the Transfer Tax Act as " property within the State," are within the meaning of subdivision 3 of section 2476 of the Code of Civil Procedure, " property within that county " where the corporate property is, Act of 1892. 81 Appraisers; method of appraisal. § II and hence the Surrogate's Court of that county has, by force of section 10 of the act, jurisdiction to impose the tax. Matter of Fitch, 160 N. Y. 87, 54 N. E. 701, affirming 39 App. Div. 609, 57 N. Y. Supp. 786. Where nonresident leaves property in more than one county. — Where a nonresident decedent leaves property in two differ- ent counties in this State, the surrogate who first issues ancillary letters upon the estate has exclusive jurisdiction to appoint an appraiser under the Taxable Transfers Act. Matter of Hatha- way, 27 Misc. 474, 59 N. Y. Supp. 166. Where estate of nonresident has been distributed. — Where the executors of a nonresident decedent, who owned personal prop- erty within this State at the time of death subject to tax, have had their final accounting at the domicile of the decedent, made distribution of the estate, and obtained their discharge, juris- diction is still had by the surrogate of the county in this State in which the property was situate, to appoint an appraiser and fix the tax. Matter of Hubbard, 21 Misc. 566 ; Matter of Fitch, 26 Misc. 353, affirmed on other grounds, 39 App. Div. 609, 160 N. Y. 87. Special guardians. — No appointment should be made by a surrogate of a special guardian for an infant interested in the re- mainder of an estate, when such interest cannot be determined or taxed in that proceeding. No fee will be allowed such guardian. Matter of Post, 5 App. Div. 113. § 11. Appointment of appraisers.— The surrogate, upon the application of any interested party, including county treasurers, or the comptroller of New York city, or upon his own motion, shall, as often as and when- ever occasion may require, appoint a competent person as appraiser, to fix the fair market value, at the time of the transfer thereof, of property of persons whose estates shall be subject to the payment of any tax im- posed by this act. If the property upon the transfer of which a tax is imposed shall be an estate, income or interest for a term of years, or for life, or determinable upon any future or contingent estate, or shall be a re- mainder or reversion or other expectancy, real or per- 82 Act of 1892. § 12 Proceedings by appraisers. sonal, the entire property or fund by which such es- tate, income or interest is supported, or of which it is a part, shall be appraised immediately after such transfer, or as soon thereafter as may be practicable, at the fair and clear market value thereof at that time, provided, however, that when such estate, income or interest shall be of such a nature that its fair and clear market value can not be ascertained at such time, it shall be appraised in like manner at the time when such value first became ascertainable. The value of every future, or contingent or limited estate, income, inter- est or annuity dependent upon any life or lives in being shall be determined by the rule, method and standard of mortality and value employed by the super- intendent of insurance in ascertaining the value of poli- cies of life insurance and annuities for the determina- tion of liabilities of life insurance companies; except that the rate of interest for computing the present value of all future and contingent interests or estates shall be five per centum per annum. Revised from L. 1885, chap. 483, § 13, as amended by L. 1887, chap. 713, L. 1889, chap. 307, and L. 1898, chap. 167, in effect from May 1, 1892, to June 15, 1896. Appraiser should only be appointed in taxable estates. — Decision under Act of 1885. Matter of Jones (Surr. Ct.), 5 Dem. 30, 19 Abb. N. C. 221. Time of appointment is left to the sound discretion of the surrogate. Matter of Westurn, 152 N. Y. 93, 46 N. B. 315. See note under future and contingent interests, p. 61. See notes under § 12. § 12. Proceedings by appraisers.— Every such ap- praiser shall forthwith give notice by mail to all per- sons known to have a claim or interest in the prop- Act of 1892. 83 Proceedings by appraisers. § 12 erty to be appraised, including the county treasurer or 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 com- pel the attendance of witnesses before him and to take the evidence of such witnesses under oath con- cerning such property and the value thereof; and he shall make report thereof and of such value in writing, to the said surrogate, together with the de- positions of the witnesses examined, and such other facts in relation thereto and to the said matter as said surrogate may order or require. Every appraiser shall be paid on the certificate of the surrogate at the rate of three dollars per day for every day actually and necessarily employed in such appraisal, and his actual and necessary traveling expenses and the fees paid such witnesses which fees shall be the same as those now paid to witnesses subpoenaed to attend in courts of record by the county treasurer or comptroller out of any funds he may have in his hands on account of any tax imposed under the provisions of this act. Revised from L. 1885, chap. 483, § 13, as amended by L. 1887, chap. 713, L. 1889, chap. 307, and L. 1892, chap. 167 in effect from May 1, 1892, to June 15, 1896. Notice of appraisal. — An appraiser should mail notices to all persons known to have an interest in the property and a re- port showing that only the persons whose names appear in the order of appointment were notified is insufficient. Decision un- der Act of 1887. Matter of Astor (Surr. Ct.), 2 1ST. Y. Supp. 630, 6 Dem. 402. The " People " are an " interested party " although not cited, and when the district attorney appears it will be assumed that 84 Act of 1892. § 12 Test of value; appraisal of securities. he had authority to do so. Decision under Act of 1885. Matter of Arnett, 49 Hun, 599, 18 St. Eep. 576, 2 N". Y. Supp. 428. Appraisal where property is in more than one county. — Where property is situated in more than one county, the ap- praiser appointed by the surrogate first acquiring jurisdiction may appraise it all. Decision under Act of 1887. Matter of Keenan (Surr. Ct.), 5 N. Y. Supp. 200, 22 St. Eep. 79, 1 Con- noly, 226. Competency of witnesses; effect of section 829 of Code. — On an appraisal, a residuary legatee and son of the decedent is not forbidden by section 829 of the Code of Civil Procedure from testifying to interviews with decedent tending to show that a particular legacy to him was in payment of a debt for services. Matter of Gould, 19 App. Div. 352, 46 1ST. Y. Supp. 596; modi- fied as to another point, 156 N. Y. 423. Value at time of transfer of title to be determined. — 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 title, and not the value at the time of the transfer of possession. Decisions under Act of 1887. Matter of Davis, 149 N. Y. 539, 44 N. E. 185, affirm- ing 91 Hun, 53, 71 St. Eep. 625, 36 N. Y. Supp. 822 ; Matter of Sloane, 154 N. Y- 109 47 N. E. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. If the interest subject to tax' cannot be appraised immedi- ately after its transfer, it is to be appraised at its fair and clear market value at the date of its transfer whenever such value can be ascertained. Decision under Act of 1892. Matter of Sloane, 154 N. Y. 109, 47 1ST. E. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. Appraisal of securities. — In appraising securities under Laws 1891, chap. 34, three months is " a reasonable period of time " for an appraiser to consider " the range of the market and the average of prices.'' Matter of Crary, 31 Misc. 72, 64 K Y. Supp. 566. The surrogate of New York county held in the Matter of the Appeal Taken by the Executors of the Estate of John Patterson, Deceased (reported in N. Y. L. J. May 13, 1898), that chapter 34, Laws of 1891, did not govern appraisers in fixing the values of securities for the reason that chapter 908, Laws of 1896, being a later statute and providing a special system of taxation, the method therein provided should be used and the value as of the time of the transfer (viz., the date of death) taken as the basis. Subsequently in the Matter of Ottendorfer (N. Y. L. J., Janu- ary 14, 1903), the surrogate of New York county held that the Act of 1892. 85 Appraisal of securities; deductions. § 12 proper method to be used was that provided by chapter 34, Laws of 1891. For the purpose of taxation, an appraiser may properly de- termine the value of securities from reports of public sales thereof at the New York Stock Exchange in compliance with chapter 34, Laws of 1891, and where no sales are made he must determine their value from the best information he can obtain. The number of shares held by a decedent, which if sold at one time might depreciate the value, is not to be considered by the appraiser. Matter of Gould, 19 App. Div. 352, 46 N. Y. Supp. 506 ; modified as to another point, 156 N. Y. 423. Where the shares of a joint-stock association are not listed upon the stock exchange or sold in open market, if the property of the association consists of realty, the value thereof may be considered in appraising the shares. Matter of Jones, 172 N. Y. 575, reversing 09 App. Div. 237, 74 1ST. Y. Supp. 702. L. 1891, chap. 34, § 1. — " Whenever by reasons of the pro- visions of any Law of this State it shall become necessary to appraise in whole or in part the estate of any deceased person, or of any insolvent estate in the hands of a receiver, or of any assignee for the benefit of creditors, or of any corporation in the hands of a receiver or otherwise, the person whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated during the year imme- diately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds, or securities as are customarily bought or sold in open markets in the City of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time." Deductions ; funeral expenses. — The funeral expenses of a decedent are properly deducted prior to the assessment of tax. Matter of Millward, 6 Misc. 425, 57 St. Eep. 833, 27 N". Y. Supp. 286; cited and approved as to this point, Matter of Edger- ton, 35 App. Div. 125 ; affirmed without opinion, 158 N. Y. 671. Deductions; expenses of administration. — In appraising an estate the commissions and expenses of administration are to be deducted by the appraiser, and where uncertain they may be es- timated. Matter of Gould, 19 App. Div. 352, 46 N. Y. Supp. 506; modified as to another point, 156 N. Y. 423; Matter of Westurn, 152 N. Y. 93, 46 N. E. 315. Upon the appraisal of an estate of a nonresident where no 86 Act of 1892. § 12 Deductions. proof is made as to the rate of executors' commissions in the foreign State, the appraiser should make a deduction based upon the relative amount of property in this State, at the rate at which commissions are allowed to executors in this State. Mat- ter of Kennedy, 20 Misc. 531, 46 N. Y. Supp. 906. Deductions; taxes. — Taxes levied subsequent to the death of a decedent under an assessment made prior to his death and paid by the executor from the estate should be deducted by the ap- praiser. Matter of Brundage, 31 App. Div. 348, 52 N. Y. Supp. 362. Deductions; value of particular estate. — In appraising a legacy given in remainder after the death or remarriage of the life tenant, the value of the particular estate is to be deducted from the principal of the fund. Matter of Sloane, 154 N. Y. 109, 47 N. E. 978, affirming 19 App. Div. 411, 46 1ST. Y. Supp. 264. Deductions ; mortgage debts not allowed. — A direction by tes- tator to pay certain mortgages out of personalty does not au- thorize the appraiser to deduct the amount from the value of the personal estate. Matter of Berry, 23 Misc. -230, 51 N". Y. Supp. 1132; Matter of De Graff, 24 Misc. 147, 53 N. Y. Supp. 591. Mortgage debts of the testator are not to be deducted from the personal property prior to the assessment of the tax. Matter of Sutton, 3 App. Div. 208, 73 St. Eep. 758, 38 N". Y. Supp. 277; affirmed without opinion, 149 N. Y. 618; Matter of Offer- man, 25 App. Div. 94, 48 1ST. Y. Supp. 993 ; followed in Matter of Murphy, 32 App. Div. 627; affirmed without opinion, 157 N. Y. 679. In assessing a transfer tax upon personalty no deduction should be allowed for mortgages paid by the executors out of the per- sonal estate. Matter of Livingston, 1 App. Div. 568, 72' St". Eep. 552, 37 N. Y. Supp. 463. Deductions; legacy tax elsewhere not allowed. — Upon the appraisal of an estate of a nonresident, no deduction should be made for the amount of the legacy tax paid in another State upon the entire estate. Matter of Kennedy, 20 Misc. 531, 46 N. Y. Supp. 906. Deductions; will contest expenses not allowed. — A sum ex- pended by successful contestants in litigation over a will cannot be deducted. Matter of Westurn, 152 1ST. Y. 93, 46 N. E. 315. Appraiser should not rely on counsel. — An appraiser should not rely on briefs of counsel to sustain his findings as to property taxable. Matter of Astor (Surr. Ct), 2 N. Y. Supp. 630, 6 Dem. 403. Act of 1892. 87 Report of appraiser. § 12 Report of appraiser. — The appraiser should report all prop- erty as to which he is in doubt as subject to tax. Matter of Hen- dricks (Surr. Ct), 3 N. Y. Supp. 281, 1 Connoly, 301, 18 St. Rep. 989. The report of an appraiser should show that the property was appraised at its fair market value. Matter of Astor (Surr. Ct.), 2 N. Y. Supp. 630, 6 Dem. 402. It is the duty of the appraiser to report all the property as liable to tax, and it is improper for the report to contain a state- ment of the exempt property. Decision under Act of 1887. Matter of Astor (Surr. Ct), 2 N. Y. Supp. 630, 6 Dem. 402. An appraiser's report showing that he had appraised "All the property of the deceased made known to him by the executor " is insufficient. He should appraise all the property liable to the tax regardless of the source of his information. Decision under Act of 1887. Matter of Astor (Surr. Ct.), 2 N. Y. Supp. 630, 6 Dem. 402. Where an annuity is left to persons exempt, with contingent remainder to persons taxable, the appraiser should report the market value of the contingent interest at the date of decedent's death, and leave the taxation for future action. Decision under Act of 1885. Matter of Clark (Surr. Ct.), 5 N. Y. Supp. 199, 1 Connoly, 431. Upon a new proceeding for the collection of a transfer tax upon property of a decedent omitted from the first appraisal, it should clearly appear in the report of the appraiser that all of the property remaining- of the estate, subject in any contingency to the payment of a tax, is embraced within the proceeding. Matter of Earle, 74 App. Div. 458. Reservation of right to tax uncertain claims. — Where deduc- tions for uncertain or doubtful claims are allowed, an appropri- ate recital should be included in the appraisers report and the order, reserving the right to tax them. Decision under Act of 1887. Matter of Bice, 29 Misc. 404, 61 N. Y. Supp. 911 ; af- firmed on opinion below, 56 App. Div. 253 ; Matter of Westum, 152 N. Y. 93, 46 N. E. 315. Where an estate is appraised for the purpose of assessing a transfer tax before the judicial settlement of the account of an executor or administrator, if there is reasonable ground for doubting the validity of a debt paid, or the necessity or reason- ableness of the expenses of administration, the report of the appraiser should reserve the question of assessing the transfer tax on a portion of the estate equal to the amount of the claim and presently impose a tax upon the residue. It is improper for Act op 1892. § 13 Determination of surrogate. the appraiser to disallow a portion of the disbursements made in good faith by the executor or administrator and to assess a tax thereon. Mattel- of Dimon, 82 App. Div. 107. Conclusiveness of report. — Where the appraiser has exhausted every remedy in force at the time the appraisal was made, his acts and conclusions are binding upon the State unless he com- mitted errors for which an appeal might have been taken. De- cision under Act of 1885. Matter of Smith, 14 Misc. 169. The report of the appraiser that certain legacies are the only ones taxable, when confirmed by the surrogate, protects the executor from a claim for taxes upon other legacies not included in the assessment. Decisions under Act of 1887. Matter of Van- derbilt (Surr. Ct.), 10 N. Y. Supp. 239, 2 Connoly, 319; Mat- ter of Wolfe (Surr. Ct.), 15 N. Y. Supp. 539, 2 Connoly, 600; affirmed on other points, 137 N. Y. 205. Unlawful acts of appraiser a misdemeanor. Penal Code, § 48c. Added by Laws 1893, chap. 692. , Amendment, L. 1895, ch.. 556. § 13. Determination of surrogate. — The report of the appraiser shall be filed in the office of the surrogate, and 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 applica- tion of any surrogate, determine the value of any such future or contingent estates, income or interest 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 evidence that the method of computation adopted Act of 1892. 89 Reappraisal within two years. § 13 therein is correct. Any person dissatisfied with the appraisement 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 act, and of the tax to which it is liable, to all parties known to be inter- ested therein. 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 comp- troller of the State may, if he believes that such ap- praisal, assessment or determination has been fraudu- lently, collusively, or erroneously made, make applica- tion to a justice of the supreme court of the judicial district in which the former owner of such estate re- sided for a reappraisal thereof. The justice to whom such application is made may thereupon appoint a com- petent person to reappraise such estate. Such ap- praiser shall possess the powers, be subject to the du- ties and receive the compensation provided by sec- tions eleven and twelve of this act. Such compensa- tion shall be payable by the county treasurer or comp- troller out of any funds he may have on account of any tax imposed under the provisions of this act, 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 pro- ceedings shall be taken and had by and before such 90 Act of 1892. § 13 Surrogate is taxing officer. justice as are herein provided to be taken and had by and before the surrogate. The determination and as- sessment of such justice shall supersede the determi- nation and assessment of the surrogate, and shall be filed by such justice in the office of the state comp- troller. [As amended by L. 1895, chap. 556, in effect May 8, 1895.] Revised from L. 1885, chap. 483, § 13, as amended by L. 1887, chap. 713, L. 1889, chap. 307, and L. 1892, chap. 167. Scope of amendment. — The matter in italics added by amend- ment of 1895. Surrogate is taxing officer. — The surrogate is made the assessing and taxing officer, and as such is the representative of the State. He may proceed with the assessment of the tax with- out notice to any city official. A decree adjudging certain lega- cies exempt is a bar to a subsequent proceeding by the district attorney to enforce a tax thereon. Decision under Act of 1885. Matter of Wolfe, 137 1ST. Y. 205, 50 St. Eep. 406, 33 N. E. 156, reversing 66 Hun, 389, 50 St. Eep. 115, 21 1ST. Y. Supp. 515. The surrogate is first made a taxing officer, who, upon the report of the appraiser, enters an order fixing the tax " as of course;" from the determination an appeal lies to the surrogate sitting as a judge, when for the first time the proceeding takes on a judicial character. Weston v. Goodrich, 86 Hun, 194. The surrogate in fixing the amount of tax acts after the man- ner of an assessor, and this initial step in a tax can be performed by him alone. Weston v. Goodrich, supra. Presumption of notice. — In the absence of proof to the con- trary, it is to be presumed that the surrogate has given the re- quisite notice. Decision under Act of 1885. Matter of Miller, 110 N. Y. 216, 18 St. Eep. 226, affirming 47 Hun, 394, 13 St. Eep. 45. Effect of failure to give notice. — As the transfer tax under the Act of 1892 is a lien upon the property until paid, a pro- ceeding to assess the tax without notice to the sole heir-at-law of the intestate is void, and the report of the appraiser, although confirmed by the surrogate, should be set aside. She should uot be compelled to pay the tax and then be put to the trouble and expense of applying to the State comptroller for any erro- neous payment. Matter of Winters, 21 Misc. 552. Act of 1892. 91 Modification of order. § 13 Assessment of tax; persons liable. — The tax on a life estate should be deducted from the income and on the remainder de- ducted from the principal. Decision under Act of 1885. Mat- ter of Johnson (Surr. Ct.), 6 Dem. 146, 20 St. Eep. 134. A life tenant is not liable to pay the tax upon remainders, but the same should be borne by the beneficiaries. Decision under Act of 1887. Matter of McMahon, 28 Misc. 697, 60 N". Y. Supp. 64. Judgment on construction of will not conclusive. — An executor taking a third of a residuary estate is not relieved from tax although in an action to construe the will it was held impressed with a trust. The State is not concluded by the judg- ment of the Supreme Court entered upon the remittitur of the Court of Appeals, but may examine the remittitur and the opin- ion. Decision under Act of 1887. Matter of Edson, 38 App. Div. 19, 56 N". Y. Supp. 409; affirmed on opinion below, 159 N. Y. 568. Judgment as to tax; how far conclusive. — An adjudication by a surrogate in a proceeding under the Inheritance Tax Act that a certain amount of property passed to residuary legatees under a will is binding upon the question of taxation only, and is not conclusive upon the rights of parties arising from matters outside of the will. Amherst College v. Bitch, 151 N. Y. 282, 45 N". E. 876, 37 L. E. A. 305. Modification of order. — A surrogate cannot make an order decreeing that a prior order which has remained unreversed was erroneous and that a payment of transfer tax assessed by it was made in error. Matter of Schermerhorn, 38 App. Div. 350, 57 N. Y. Supp. 26. Where a tax has been erroneously imposed on United States government bonds imder chapter 399, Laws of 1892, the surro- gate has power under Laws 1896, chap. 908, § 225, as amended by Laws 1897, chap. 284, to modify his order and direct a re- fund, although the time to appeal has expired. The comptroller may be mandamused to procure the refund. Matter of Coogan, 27 Misc. 563; affirmed without opinion, 45 App. Div. 628, 162 N. Y. 013. Under subdivision 6 of section "2481 of the Code, a surrogate has power to modify an order fixing the transfer tax on an es- tate after 'the time to appeal therefrom has expired, where it appears that certain legacies upon which a 5 per cent, tax was imposed, had lapsed by the death of the legatees prior to that of the testator and passed to the testator's widow in whose hands they were chargeable with a tax of but 1 per cent. Morgan v. Cowie, 49 App. Div. 612, 63 1ST. Y. Supp. 608. Act of 1892. § 13 Appeals. A surrogate has no power under Code, section 2481, to open a decree assessing the transfer tax, for errors of law or of fact. Matter of Coogan, 27 Misc. 563, distinguished on the ground that in that case the surrogate never had jurisdiction to fix a transfer tax on United States bonds, and his decree was, there- fore, void. Matter of Wallace, 28 Misc. 603. Where a surrogate has by order confirmed the report of an appraiser under a mistake of fact, he may vacate his order, and send his report back to the appraiser for correction; Matter of Crerar, 56 App. Div. 479, distinguished on the ground that in such case there was no mistake of fact. Matter of Earle, 74 App. Div. 458. Appeals.— Where me grounds of the appeal are required to be stated, none except those specified can be considered. Matter of Davis, 149 N". Y. 539, 44 N". E. 183, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N". Y. Supp. 822. The surrogate on appeal cannot entertain any claim for deduc- tion not specified in the notice of appeal, citing Matter of Davis, 149 N". Y. 540. Matter of Wormser, 51 App. Div. 441, modify- ing 28 Misc. 608, 59 N. Y. Supp. 1088. A question may be raised upon an appeal 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 allowed for appeal. Matter of Westurn, 152 N. Y. 93, 46 K E. 315. It seems that the only remedy for correction of purely legal errors involved in a surrogate's determination is by the appeal prescribed by section 13. Morgan v. Cowie, 49 App. Div. 612, 63 N. Y. Supp. 608. Upon the 'hearing of an appeal the surrogate may in his dis- cretion deny an application to submit additional papers. Mat- ter of Wormser, 51 App. Div. 441, modifying 28 Misc. 608, 59 N. Y. Supp. 1088. The State comptroller may appeal from a surrogate's order determining that a part of a decedent's estate is not taxable, and where not a party to the proceeding, has three months from the time of entry of the order in which to take an appeal as pro- vided by section 2572 of the Code. Matter of Dingman, 66 App, Div. 228, 72 N. Y. Supp. 694. Appeals to Court of Appeals. — The provision of the Constitu- tion, article 6, section 9, and of the Code of Civil Procedure, section 191, that no unanimous decision of the Appellate Divi- sion that there is evidence supporting a finding of fact shall be Act of 1892. 93 Surrogate's and district attorney's assistants. § 14 reviewed by the Court of Appeals has no application to an appeal from an order of the Appellate Division affirming an order of a surrogate reversing the imposition of a transfer tax where no question of fact was in controversy, and the only question was the legal construction of the instrument of transfer and the statute. Matter of Green, 153 N. Y. 223, 47 N. E. 292, re- versing 7 App. Div. 339, 40 N. Y. Supp. 1019. Reappraisals. — In the absence of fraud or mistake a reap- praisement will not be ordered on the ground that after the order fixing the tax the property was sold at public auction for a price exceeding the appraisal. Matter of Bruce (Surr. Ct.), 59 N. Y. Supp. 1083. Upon an application for a new appraisal the appraiser must not reappraise property included in the original appraisal at a higher valuation than that fixed on such appraisal, nor reduce the allowance made upon the first appraisal for debts due by the decedent and for expenses of administration, although some of such debts have been successfully disputed by the executors, and the expenses of administration proved less than estimated. These matters are res adjudicata until the order is reversed or modified. Matter of Bice, 56 App. Div. 253, affirming 29 Misc. 404, 61 N. Y. Supp. 911. Allowance of costs in discretion of surrogate. — The allowance of costs to the comptroller on appeal to the surrogate is within the sound discretion of the surrogate, and should not be dis- turbed except for sufficient cause. Matter of Hoffman, 76 Hun, 399, 58 St. Eep. 699, 27 N". Y. Supp. 1086. Amendments, L. 1894, ch. 767; L. 1895, chs. 191, 515. § 14. Surrogate's and district attorney's assistants in New York city — The comptroller of the city and county of New York shall retain out of any funds he may have in his hands on account of said tax, a sum of money sufficient to provide the surrogates in the city and county of New York with an assistant, appointed hy said surrogates, who shall be known as the transfer tax assistant, whose salary shall be four thousand dol- lars a year ; a transfer tax clerk, whose salary shall be two thousand four hundred dollars a year ; an assistant 94 Act of 1892. § 14 Surrogate's and district attorney's assistants. clerk, whose salary shall be one thousand eight hun- dred dollars a year, and a recording clerk, whose salary shall be one thousand three hundred dollars a year, said salaries to be paid monthly ; and a further sum of money, not exceeding five hundred dollars a year, to be used to pay the expenses of the said surrogates neces- sarily incurred in the assessment and collection of said " tax, said amounts to be paid upon the certificates and requisitions of said surrogates respectively. The comptroller of the city and county of New York shall also retain, out of any funds he may have in his hands on account of said tax, a sum of money sufficient to pro- vide the district attorney in the city and county of New York with an assistant, appointed by said district at- torney, who shall be known as the transfer tax assist- ant, whose salary shall be three thousand dollars a year; a transfer tax clerk, whose salary shall be two thousand four hundred dollars a year, and a surro- gate's process server, whose salary shall be one thou- sand two hundred dollars a year, said salary to be pay- able monthly; and a further sum of money not exceed- ing five hundred dollars a year, to be used to pay the expenses of the said district attorney for the conduct and prosecution of the proceedings mentioned in sec- tion fifteen of this act, said amounts to be paid upon the certificate and requisition of said district attorney. The county treasurer of the county of Erie shall also retain out of any funds he may have in Ms hands on account of said tax, a sum of money sufficient to pro- vide the district attorney in the county of Erie with an assistant, appointed by the said district attorney, who Act of 1892. 95 Collection of taxes by district attorney. § 15 shall be known as the transfer tax assistant, whose sal- ary shall be two thousand dollars a year, said salary to be paid monthly. [As amended by L. 1894, chap. 767, in effect May 24, 1894; L. 1895, chap. 191, in effect March 30, 1895, and L. 1895, chap. 515, in effect May 2, 1895.] Revised from L. 1885, chap. 483, § 13, as amended by L. 1887, chap. 713, L. 1889, chap. 307, and L. 1892, chap. 167. Scope of amendments. — The amendment of 1894 provided for district attorney's assistants in New York county. The first amendment of 1895 provided for a district attorney's assistant in Erie county. The second amendment of 1895 increased the compensation of the transfer tax assistant in New York county from three to four thousand dollars. Assistants in Kings and Westchester. — Laws 1893, chap. 199 \ Laws 1895, chap. 861. Amendment, L. 1895, ch. 378. § 15. Proceedings for the collection of taxes. — If the treasurer or comptroller of any county shall have rea- son to believe that any tax is due and unpaid under this act, 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, 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 ap- plication, and whenever it shall appear to him that any such tax accruing under this act has not been paid as required by law, shall issue such citation, and the ser- 96 Act of 1892. § 15 Collection of taxes by district attorney. vice of such citation, and 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 service of cita- tions out of the surrogate 's court, and the hearing and determination thereon and its enforcement so far as the same may be applicable. The surrogate or his clerk shall upon request of the district attorney, treas- urer or comptroller of the county 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 dock- eting transcripts of decrees of the surrogate's court. The costs awarded by any such decree after the collec- tion and payment of the tax to the treasurer or comp- troller may be retained by the district attorney for his own use. Such costs shall be fixed by the 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 surro- gate shall certify that there was probable cause for issuing a citation and taking the proceedings specified in this section, the State treasurer shall pay or allow to the treasurer or the comptroller of a county all ex- penses incurred for the service of citations and other lawful disbursements not otherwise paid. In proceed- ings to which any county treasurer or comptroller is cited as a party under sections eleven and twelve of this act, the state comptroller is authorized to desig- Act of 1892. 97 Collection of taxes by district attorney. § 15 nate and retain counsel to represent such county treas- urer or comptroller therein, and to direct such county treasurer or comptroller to pay the expenses thereby incurred out of the funds which may be in his hands on account of this tax. 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 re- sided 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 bene- ficiaries to the former owner thereof. [As amended by L. 1895, chap. 378, in effect April 23, 1895.J Eevised from L. 1885, chap. 483, §§ 16, 17, 19, as amended by L. 1887, chap. 713, and L. 1892, chap. 168. The Surrogate's Court has power to decide every question that may arise in a proceeding under the act, which may be necessary to fully discharge the duties imposed upon it. Matter of Ullman : 137 K Y. 403, 33 N. E. 480, 51 St. Eep. 1, reversing 67 Hun, 5, 21 N. Y. Supp. 758, 50 St. Eep. 748. An order for the payment of tax cannot be enforced by pro- ceedings for contempt before the return of an execution on the surrogate's decree. Decision under Act of 1885. Matter of Prout (Surr. Ct.), 3 N. Y. Supp. 831, 19 St. Eep. 318. The surrogate cannot on the motion of the executor decide the question of his liability to pay the tax. Proceedings must be instituted by the district attorney. Decision under Act of 1887. Matter of Farley (Surr. Ct.), 15 St. Eep. 727. Proceedings by the district attorney for the enforcement and collection of a tax may be taken only where the tax is due and has not been paid. Decision under Act of 1885. Matter of Wolfe, 137 N. Y. 205, 50 St. Eep. 406, 33 N. B. 156, reversing 66 Hun, 389, 50 St. Eep. 115, 21 N. Y. Supp. 515. District attorney proceedings for the enforcement of the tax are not to be taken until after eighteen months from the date of death of decedent, and no costs should be allowed against execu- tor or trustee where proceedings are instituted prior thereto. 7 Act of 1892. §§ 16, 17 Receipt from and fees of officials. Decision under Act of 1887. Frazer v. People (Surr. Ct.), 3 N. Y. Supp. 134, 6 Dem. 174. An action to compel payment of a legacy tax is not an action for a penalty which must be brought within two years after the cause of action accrues. (Code, § 384.) Matter of Wolfe (Surr. Ct.>, 15 N. Y. Supp. 539, 2 Connoly, 600; affirmed on other points, 137 N. Y. 205. An objection to the amount of an assessment cannot be raised on proceedings to compel the payment of the tax, where no appeal from the order fixing the amount of such tax was taken in the time limited therefor. Matter of Hacket, 14 Misc. 282. Costs allowed the district attorney must be taxed in the same manner as other costs in surrogate's proceedings. Matter of Mc- Carthy, 5 Misc. 276. § 16. 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 comptroller of the city of New York, or at his option to a copy of a receipt that may have been given by such treasurer or comptroller for the payment of any tax under this act, under the official seal of such treasurer or comptroller, which re- ceipt shall designate 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 "transfer tax." Revised from L. 1885, chap. 483, § 23, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. Amendment, L. 1893, ch. 704. § 17. Fees of county treasurer and comptroller The treasurer of each county and the comptroller of the Act of 1892. 99 Books and forma furnished. § 18 city and county of New York, shall be allowed to retain on all taxes paid and accounted by him^ each year, under this act, five per centum on the first fifty thou- sand dollars, three per centum on the next fifty thou- sand dollars and one per centum on all additional sums. Such fees shall be in addition to the fees and salaries now allowed to such officers, except that in the counties of Erie and Monroe such per centum shall be credited to and belong to the county where collected. [As amended by L. 1893, chap. 704, in effect May 13. 1893.] Revised from L. 1885, chap. 483, § 22, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. § 18. Books and forms to be furnished by the state comp- troller — 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 estates an application to him has been made for the issue of letters of administration, or let- ters 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, resi- dences 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 estimated value of any real prop- erty devised therein, and to whom devised. These en- tries shall be made from the data contained in the papers filed on any such application, or in any proceed- ing relating to the estate of the decedent. The surro- gate shall also enter in such book the amount of the personal property of any such decedent, as shown by 100 Act of 1892. § 19 Reports of surrogate and county clerk. the inventory thereof when made and filed in his office, and the returns made by any appraiser appointed by him under this act, and the value of annuities, life es- tates, 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 act 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 en- tries to be made in such book. Revised from L. 1885, chap. 483, § 20, as amended by L. 1887, chap. 713, in effect from July 1, 1892, to June 15, 1896. § 19. Reports of surrogate and county clerk Each sur- rogate shall, on January, April, July and October first of each year, make a report in duplicate, 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 immediately delivered to the county treasurer or comptroller and the other trans- mitted to the state comptroller. The county clerk of each county shall at the same times make reports in duplicate, containing a statement of any deed or other conveyance filed or recorded in his office of any prop- erty, which appears to have been made or intended to take effect in possession 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 residence of the grantee or vendee, and a descrip- tion of the property transferred, one of which dupli- Act of 1892. Reports; application of taxes; definitions. §§ 20, 21, 22 cates shall be immediately delivered to the county treasurer or comptroller and the other transmitted to the state comptroller. Revised from L. 1885, chap. 483, § 18, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. § 20. Reports of county treasurer and of the comptroller of the city of New York. — Each county treasurer and the comptroller of the city of New York shall make a report under oath to the state comptroller, on Janu- ary, April, July and October first of each year, of all taxes received by him under this act, stating for what estate and by whom and when paid. The form of such report may be prescribed by the state comptroller. He shall at the same time pay the state treasurer all taxes received by him under this act 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. Revised from L. 1885, chap. 483, § 21, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. § 21. Application of taxes — All taxes levied and col- lected under this act shall be paid into the treasury of the state for the use of the state, and shall be applicable to the expenses of the state government and to such other purposes as the legislature shall by law direct. Revised from L. 1885, chap. 483, § 24, as amended by L. 1887, chap. 713, in effect from May 1, 1892, to June 15, 1896. § 22. Definitions.— The words "estate" and "prop- erty" as used in this act shall be taken to mean the property or interest therein of the testator, intestate, 102 Act of 1892. § 22 Definition of property; transfer defined. grantor, bargainor or vendor, passing or transferred to those not herein specifically exempted from the pro- visions of this act and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next-of-kin, grantees, donees or ven- dees, and shall include all property or interest therein, whether situated within or without this state, over which this state has any jurisdiction for the purposes of taxation. The word "transfer" as used in this act shall be taken to include the passing of property or any interest therein in possession or enjoyment, pres- ent or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift in the manner herein prescribed. The words "county treasurer," "comp- troller" and "district attorney" as used in this act shall be taken to mean the treasurer, comptroller or district attorney of the county of the surrogate having jurisdiction as provided in section ten of this act. New. Definition of property.— It is the jurisdiction of the State to subject property to taxation under its general taxing power, and not whether the jurisdiction has been exercised, which is the test of exemption under this section. Matter of Sherman, 153 N. Y. 1, 46 N. E. 1032, affirming 15 App. Div. 628. It was accordingly held in the above case that a transfer of United States bonds, formerly subject to taxation, was exempt under the Act of 1892, such bonds not being subject to the juris- diction of the State for the purpose of taxation. See also Mat- ter of Hoffman, 143 N. Y. 327, supra, p. 54. This limitation remained in the law, until Laws 1898, chap. 88, in effect March 21, 1898, amended the Act of 1896 by eliminating it. Transfer defined.— The term "transfer" is used in its ordi- nary legal significance, viz. : That the owner of a thing delivers it to another with the intent of passing the rights he has in it to the latter. Matter of Gould, 156 1ST. Y. 423, 51 N. B. 287, modi- fying 19 App. Div. 352, 46 N. Y. Supp. 506. See also decisions under section 1 of this act, p. 53. Act of 1892. 103 Laws repealed; saving clause; construction. §§ 23, 24, 25 § 23. Laws repealed — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby re- pealed. New. § 24. Saving clause.— The repeal of a law or any part of it specified in the annexed schedule shall not affect or impair any act' done, or right accruing, accrued or acquired, or liability, penalty, forfeiture, or punishment incurred prior to May first, eighteen hundred and ninety-two, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such law had not been repealed ; and all actions and proceedings, civil or criminal, commenced under or by virtue of the law so repealed and pending on April thirtieth, eigh- teen hundred and ninety-two, may be prosecuted and defended to final effect in the same manner as they might under the laws then existing, unless it shall be otherwise specially provided by law. New. The " accrued rights " saved by this section include the right to pay interest only from eighteen months after death of testator, where death occurred before the Act of 1892. Matter of Fayer- weaiher, 143 N. Y. 114, 38 N. E. 278, 62 St. Eep. 127. § 25. Construction.— The provisions of this act, so far as they are substantially the same as those of laws existing on April thirtieth, eighteen hundred and ninety-two, shall be construed as a continuation of such 1 104 Act of 1892. § 26 Schedule of laws repealed. laws, modified or amended according to the language employed in this act, and not as new enactments. References in laws not repealed to provisions of laws incorporated into this act and repealed, shall he con- strued as applying to the provisions so incorporated. Nothing in this act shall be construed to amend or repeal any provision of the Criminal or Penal Code. New. § 26. When to take effect.— This act shall take effect on May first, eighteen hundred and ninety-two. New. SCHEDULE OF LAWS REPEALED. Laws of Chapter Sections 1885 483 All. 1887...... 713 All. 1889 307 All. 1889 479 All. 1891 215 All. Part III. THE ACT OF 1896 AND AMENDMENTS. Chapter 289 of the Laws of 1889, creating a statu- tory revision commission, expressly provided, among other things, that the commission should prepare and report to the legislature a bill for the consolidation and revision of the general statutes of the State re- lating to " the collection and assessment of taxes, and the exemption of property from taxation throughout the State." In 1892 the said commission assisted in the prepara- tion of a bill revising the laws taxing the succession of property, which became chapter 399 of the Laws of 1892, known as the Taxable Transfers Aci;. The supplemental supply bill of 1892 (chapter 660) provided for the appointment by the governor of two counsel to " examine the laws of this and other States relating to taxation, and to report to the next legislature, before the first day of February, the re- sult of their investigations, with recommendations as to legislation, relating to assessment and taxation in this State." Messrs. Collin and Fiero were appointed as such counsel and reported to the legislature of 1893 a pro- posed revision of the tax laws, purporting to cover and supersede all existing statutes relating to taxa- tion. This bill, as reported by the counsel, was intro- duced in the legislature but failed to become a law. [105] 106 Act of 1896. History of act. Mr. Fiero reported to the legislature of 1895 a re- vision of all the tax laws excepting the laws relating to the taxation of transfers of property, and the taxa- tion of corporations, but no part of the bill drafted was passed by the legislature of that year. While the said special counsel were gathering data and drafting the bills for the revision and codification of the tax laws of the State, the revision commission- ers directed their attention to the codification of other laws charged upon them by statutory direction. After the failure of the special counsel, appointed to revise the tax laws, to prepare a bill acceptable to the legis- lature, the statutory revision commissioners decided to resume consideration of the subject of taxation and prepare a bill for the consolidation and revision of the laws relating to " the collection and assessment of taxes, and the exemption of property from taxa- tion throughout the State ' ' or using their own words : "None of the proposed revisions having been accepted by the legislature, the commissioners now deem it proper and desirable to resume consideration of the subject and prepare a bill, in accordance with the gen- eral scheme of revision which the commission is ex- pected to complete. ' ' "The present commissioners have carefully exam- ined the original bill prepared by the former commis- sion, as well as several bills prepared by the tax coun- sel, and, so far as practicable, have followed their general arrangement, but for the substance of this revision have gone over the entire field of statutory law relating to taxation." [Memorandum of Statu- Act of 1896. 107 History of act. tory Revision Commission — Cumming & Gilbert Tax Laws (3d ed.), pp. 39-40.] The bill thus prepared by the revision commission under the statutory power granted it to prepare and report to the legislature a bill for the consolidation and revision of the general statutes of the State, re- lating to "the collection and assessment of taxes and the exemption of property from taxation throughout the State," was presented to the legislature of 1896 and enacted by that legislature as chapter 908 of the Laws of 1896, chapter 399 of the Laws of 1892 becom- ing article X thereof. The revision commissioners in said memorandum to the legislature, with the draft to the bill, stated: "The Tax Laws of the State are quite conflicting and confused, and a revision is very desirable. In preparing the draft of the bill submitted herewith, the commission has tried to preserve, as far as possible, the substance of existing statutes, in order that the bill might not meet the objection that it effects radical changes." "Various changes, however, have been necessary to eliminate inconsistencies and to reduce the subject to a harmonious and systematic whole. Several changes are proposed in those portions of the law relating to the sale of lands for nonpayment of taxes, taxable transfers and the taxation of corporations. In making these changes the commission has been aided by valu- able suggestions from the comptroller, whose office has jurisdiction of these subjects." Chapter 908 of the Laws of 1896 was, therefore, a revision and codification of all prior statutes relating 108 Act of 1896. History of act. to "the collection and assessment of taxes and the ex- emption of property from taxation throughout the State" (Matter of Huntington, 168 N. Y. 399; Matter of Watson, 171 N. Y. 256) ; the Matter of Huntington, supra, saying at page 408: "The general rule of the liability to taxation of all property within the State was preserved, and the exemptions classified in com- prehensive phrase so as to make all prior private and special exemptions unnecessary so far as the general act conferred the same exemptions as the special and private acts, and repugnant and inconsistent so far as the special and private acts conferred greater im- munities and exemptions than the general act. If these views are correct it was not necessary to search out the many private statutes conferring exemptions and to enumerate them in the schedule of repealed statutes. ' ' Said article 10 of chapter 908 of the Laws of 1896 re-enacted the Taxable Transfers Act of 1892, chap- ter 399, as theretofore amended, without substantial change of language, except by the addition of the last sentence of section 230, providing that "whenever 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- tion ; ' ' and by the amendment to section 232 requiring appraisers' reports to be made in duplicate, and one of them filed in the office of the State comptroller. An inadvertent change, however, was made by rea- son of the combination of the Taxable Transfers Law with the other provisions of the General Tax Law. Section 4, subdivision 3 of chapter 908 of the Laws of Act of 1896. 109 History of act. 1896 expressly exempts from taxation the property of a municipal corporation of the State held for a public use, except that portion of such property not within the corporation. The Court of Appeals had formerly held in the Matter of Hamilton, 148 N. Y. 310, that a legacy to a municipal corporation was subject to the transfer tax. In the Matter of Thrall, 157 N. Y. 46, decided subsequent to the Act of 1896, the Court of Appeals in view of the language of section 220, ex- empting corporations "now exempted by law from taxation," in connection with the exemption of munic- ipal corporations by said section 4, held that a bequest to a municipal corporation was exempt from taxation. Laws of 1890, chap. 553, amending Laws of 1889, chap. 191, and Laws of 1893, chap. 498, both pro- viding exemptions from taxation to certain nonbusi- ness corporations and institutions were revised and codified in section 4, subdivision 7, chapter 908 of the Tax Law of 1896, and thus, in view of the decision in the Matter of Thrall, supra, the exemptions of such corporations from the transfer tax were continued. Said section 4, aside from the exemptions to religious corporations contained in section 221 of said article 10, provided the only exemptions from the transfer tax in favor of corporations and institutions during the period from June 15, 1896, to April 11, 1900. [Matter of Huntington, supra.] In 1900, however, by chapter 382, in effect April 11, 1900, the legislature added section 243 to the Tax Law of 1896, providing that the exemptions enumerated in said section 4 shall not be construed as being appli- cable in any manner to the provisions of article 10 110 Act of 1896. History of act. thereof. The constitutionality of this statute was up- held by Matter of Huntington, supra. The effect of this repealing amendment was to subject to taxation, all corporations, except religious corporations, which were expressly exempted by section 221 of article 10. By chapter 458, Laws of 1901, in effect April 22, 1901, amending section 221, certain classes of nonbusiness corporations enumerated in the section were exempted from taxation on bequests of personal property other than money or securities; and bible and tract societies were also exempted as religious corporations. An important change was made by Laws of 1897, chap. 284, amending section 220, in effect April 16, 1897, providing that property passing upon the exer- cise or nonexercise of a power of appointment shall be deemed transferred as of the date of such exercise or nonexercise and as if the transfer had been made from the donee of the power. See discussion on this sub- ject under " Powers of Appointment," page 145. Laws of 1897, chap. 284, in effect April 16, 1897, also amended section 230 by providing that where property is devised or bequeathed in trust for persons in succession who are all liable to taxation at the same rate, the trustees may pay out of the principal of the trust fund or property the taxes to which the particu- lar estates and the expectant estates limited thereon may be respectively liable ; or when such remainders or expectant estates shall be of such a nature that the taxes shall not be presently payable under the provisions of article 10, that the trustees may ef- fect a composition of the transfer tax upon such re- mainder interests with the county treasurer or the Act of 1896. Ill History of act. comptroller of the city of New York, by and with the consent of the State comptroller. Laws of 1898, chap. 88, in effect March 21, 1898, amending section 221, provides that, to establish the mutually acknowledged relationship of parent and child, it must begin before the child's fifteenth birth- day and be continuous for ten years thereafter, super- seding the decision in the Matter of Beach, 154 N. Y. 242, to the effect that the fact that a person was an adult at the- inception of the relationship does not ex- clude him from the exemption. Laws of 1898, chap. 88, in effect March 21, 1898, also amended section 242 by excluding from the definition of "estate" and "property" the limitation that it should only include property "over which this State has jurisdiction for the purposes of taxation. ' ' It was under this language, originally enacted in the Act of 1892, that a transfer of United States government bonds, theretofore held taxable, were held exempt from the transfer tax. The amendment overruled in effect Matter of Sherman, 153 N. Y. 1. Since the amend- ment a transfer of United States bonds has been held subject to the transfer tax. See Matter of Plummer, 30 Misc. 19; affirmed, 47 App. Div. 625, 161 N. Y. 631, and affirmed as Plummer v. Coler, 178 U. S. 115. Laws of 1899, chap. 76, amending section 230, in effect March 14, 1899, provides for the immediate taxa- tion of all future, expectant or contingent estates, pay- able from the principal of the estate at the highest rate to which in any event the same might be liable. See Matter of Vanderbilt, 172 N. Y. 69, 64 N. E. 782, modi- fying 68 App. Div. 27, 74 N. Y. Supp. 450 ; and Matter 112 Act of 1896. History of act. of Brez, 172 N. Y. 609, holding said statute constitu- tional. • This amendment seems to supersede the pro- vision of section 222 authorizing the postponement of the payment of taxes on contingent or future estates until the persons or corporations beneficially entitled thereto shall come into actual possession or enjoyment thereof. Laws of 1899, chap. 76, amending section 230, also provides that all estates upon remainder or reversion, which vested prior to June 30, 1885, shall be appraised and taxed when the person or corporation shall be en- titled to the actual possession or enjoyment thereof, provided such possession or enjoyment takes place after March 14, 1899. This amendment was held un- constitutional and void in Matter of Pell, 171 N. Y. 48. Laws of 1900, chap. 658, in effect April 25, 1900, amending section 230, provides for salaries of ap- praisers in certain counties, to be appointed by the State comptroller. Laws of 1901, chap. 173, in ef- fect March 22 2 1901, amending several sections of the law, extended the system of salaried appraisers to sev- eral additional counties, and provided that in other counties the county treasurer shall act as appraiser. Laws of 1903, chap. 41, in effect March 16, 1903, amending section 221, extends the law so as to impose a one per cent, tax upon real property passing to lineals and other near relatives, where the estate is of the value of $10,000 or more. The amendments above referred to include the more important changes in the law made since 1896. For detailed changes see the notes to the several sections. Act of 1896. 113 Table of contents; taxable transfers. § 220 LAWS 1896, CHAPTER 908. [In effect June 15, 1896. Matter of Sloane, 154 N. Y. 109.] AETICLB X. TAXABLE TRANSFERS. Section 220. Taxable transfers. 221. Exceptions and limitations. 222. Lien of tax and payment thereof. 223. Discount, interest, and penalty. 224. Collection of tax by executors, administrators and trustees. 225. Eefund of tax erroneously paid. 226. Deferred payments. 227. Taxes upon devises and bequests in lieu of com- missions. 228. Liability of certain corporations to tax. 229. Jurisdiction of the surrogate. 230. Appointment of appraisers, stenographers, et cetera. 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. 236. Eeceipt from the county treasurer and comptroller. 237. Pees of county treasurer. 238. Books and forms to be furnished by the state comptroller. 239. Eeports of surrogate and county clerk. 240. Eeports of county treasurer. 240a. Eeport of state comptroller; payment of taxes. 241. Application of taxes. 242. Definitions. 243. Exemptions in article one not applicable. § 220. Taxable transfers.— A tax shall be and is hereby- imposed upon the transfer of any property, real or per- sonal, of the value of five hundred dollars or over, or 8 114 Act of 1896. 220 Taxable transfers. of any interest therein or income therefrom, 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 pos- sessed 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 non- resident of the state at the time of his death. 3. When the transfer is of property made by a resi- dent 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 the grantor, vendor or donor, or intended to take effect, in possession or enjoyment, at or after such death. Such tax shall also be imposed when any such person or corporation becomes beneficially entitled, in posses- sion or expectancy, to any property or the income thereof by any such transfer, whether made before or after the passage of this act. Such tax 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. Revised from L. 1892, chap. 399, § 1, which was revised from L. 1885, chap. 483, § 1, as amended by L. 1887, chap. 713, L. 1891, chap. 215, L. 1892, chap. 169, in effect from June 15, 1896, to April 16, 1897, when the section was amended by L. 1897, chap. 284. No change of substance was made from the language of L. 1892, chap. 399, § 1. Act of 1896. 115 Taxable transfers. § 220 Amendment, L. 1897, ch. 284. § 220. Taxable transfers.— A tax shall be and is hereby- imposed upon the transfer of any property, real or per- sonal, of the value of five hundred dollars or over, or of any interest therein or income therefrom, 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 pos- sessed 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 non- resident of the state at the time of his death. 3. When the transfer is of property made by a resi- dent or by a nonresident when such nonresident's prop- erty is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in posses- sion or enjoyment at or after such death. 4. (Such tax shall be imposed) When any such per- son or corporation becomes beneficially entitled, in possession or expectancy, to any property or the in- come thereof by any such transfer, whether made be- fore or after the passage of this act. 5. Whenever any person or corporation shall exer- cise a power of appointment derived from any disposi- tion of property made either before or after the pas- sage of this act, such appointment when made shall be deemed a transfer taxable under the provisions of this act in the same manner as though the property to which such appointment relates belonged absolutely to 116 Act of 1896. § 220 Constitutionality; act not retroactive. the donee of such power and had been bequeathed or devised by such donee by will; and whenever any per- son or corporation possessing such a power of appoint- ■ menf so derived shall omit or fail to exercise the same within the time provided therefor, 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 pos- session or enjoyment of the property to which such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, tak- ing 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. [As amended by L. 1897, chap. 284, in effecv April 16, 1897.] Scope of amendment. — See " Powers of Appointment," p. 145. CONSTITUTIONALITY. The constitutionality of transfer tax legislation in this State was upheld in Matter of McPherson, 104 N. Y. 306, 10 N. E. 685, 58 Am. Eep. 502, affirming 41 Hun, 645. Judge Earl, in his opinion, said: "We entertain no doubt that such a tax can be constitutionally imposed. The power of the legislature over the subject of taxation, except as limited by constitutional restrictions, is unbounded. It is for that body, in the exercise of its discretion, to select the objects of taxation * * * taxes upon legacies and inheritances have been approved gen- erally by writers upon political economy and systems of taxa- tion, and no tax can be less burdensome and interfere less with the productive and industrial agencies of society. ACT NOT RETROACTIVE. Except where the intention of the legislature is clear, retro- active effect should not be given to a statute. The tax is im- Act of 1896. 117 Construction of act. § 220 posed under the law existing at the date of death, although subsequent to the death the law is amended so as to include estates or interests not theretofore taxable or exempt. Matter of Prime, 136 N. Y. 347, 49 St. Eep. 658, affirming 64 Hun, 50, 45 St. Eep. 832, 18 N. Y. Supp. 603 ; Matter of Davis, 145 K Y. 539, 44 N. B. 185, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N. Y. Supp. 822; Matter of Shane, 154 N. Y. 109, 47 N. B. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264; Matter of Milne, 76 Hun, 328, 59 St. Eep. 100, 27 K Y. Supp. 727. The legislature expressly provided by Laws 1889, chap. 479, that the exemption extended to adopted children by Laws 1887, chap. 713, should be retroactive, where the tax had not been as- sessed at the date of the enactment of Laws 1889, chap. 479. The legislature also expressly provided that the exemption of transfers to bishops and religious corporations by Laws 1892, chap. 169, should be retroactive. The method of taxing estates passing by virtue of the exercise of the power of appointment upon the death of the donee of the power cannot be deemed an exception to the rule, for the reason that the statute declares that the transfer tax accrues at the date of the death of the donee of the power rather than at the date of the creation of the power. The procedure, however, is controlled by the statute existing at the time of the institution of proceedings. Matter of Davis, and other cases, supra. CONSTRUCTION OF ACT. The statute should be construed strictly in favor of the citizen and against the State. Matter of Enston, 113 N. Y. 174, 22 St. Eep. 569, 21 N. E. 87, 3 L. E. A. 464, reversing 46 Hun, 506 ; Matter of Vassar, 127 N. Y. 1, 37 St. Eep. 239, 27 N. E. 394; Matter of Stewart, 131 N. Y. 274, 43 St. Eep. 171, 30 N. E. 184, 14 L. E. A. 836 ; Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, 32 N. E. 1096, 18 L. E. A. 709; Matter of Fayer- weather, 143 N. Y. 114, 38 N. E. 278, 62 St. Eep. 127; Matter of Harlech, 161 1ST. Y. 211, 55 N. E. 850. But a liberal con- struction should be applied to effectuate the legislative intent to subject to taxation a subject of taxation clearly within the scope of the statute. Matter of Stewart, supra. It was held under the Act of 1892, chap. 399, that a pro- vision of the law should receive the same construction as a sim- ilar provision in a prior act had received. Matter of Bailies, 144 118 Act of 1896. § 220 Transfer defined; basis of tax. N. Y. 132, 63 St. Eep. 27, 38 N. E. 1007, affirming 78 Hun, 275, 60 St. Rep. 792, 29 N. Y. Supp. 261. The several amendatory acts and revisions in so far as they substantially re-enact former provisions are not to be regarded as new enactments, nor operating as a repeal so as to affect a duty accrued under the prior law. Matter of Prime, 136 N. Y. 348, 49 St. Eep. 658. " TEANSFER " DEFINED. The language of section 220 imposing a tax upon "a transfer of any property, etc., was construed by the Court of Appeals in the Matter of Gould, 156 N. Y. 423, modifying 19 App. Div. 352. The court said : " It is certainly within the constitutional power of the legislature to tax all property by will, whether the motive of the testator be to make a gift or pay a debt, and the language, absolutely unambiguous and free from saving clauses, which the legislature employed to ac- complish 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. It matters not what the motive of a transfer by will may be, whether to pay a debt, discharge some moral obligation, or to benefit a relative for whom the tes- tator entertains a strong affection, if the devise or bequest be accepted by the beneficiary, the transfer is made by will and the State by the statute in question makes a tax to impinge upon that performance." BASIS OF TAX. The tax should be imposed upon the property in the form in which it stood at the date of transfer. Matter of Livingston, 1 App. Div. 568, 72 St. Rep. 552, 37 1ST. Y. Supp. 463; Matter of Offerman, 25 App. Div. 94, 48 1ST. Y. Supp. 993. The fact that a will works an equitable conversion does not make the value of realty taxable. The tax is to be imposed upon the property transferred as the testator leaves it. Matter of Sutton, 3 App. Div. 208, 73 St. Rep. 758, 38 N. Y. Supp. 277; affirmed without opinion, 149 N. Y. 618. The doctrine of equitable conversion cannot be invoked for the purpose of exempting property from taxation under the Transfer Tax Law. Matter of Bartow, 30 Misc. 27. In this case where property was conveyed to trustees with power to sell Act of 1896. 119 Tax is on succession. § 220 or mortgage, and providing that at the death of the grantor it should be held in trust for her daughters, each daughter being given power to appoint her share among her lawful issue and failing to do so her share to belong to such of her issue as survived her; held, on the death of a daughter leaving issue and not having exercised her power of appointment, the estate which had been converted into personalty was subject to tax under section 220, subdivision 5, as amended by chapter 284, Laws of 1897. Increase of property between decedent's death and the ac- counting of executors is not subject to tax. The provisions of, the statute for charging interest on the tax was intended in lieu thereof. Matter of Yassar, 127 N. Y„ 1, 37 St. Eep. 239, re- versing 58 Hun, 378, 34 St. Eep. 328, 12 1ST. Y. Supp. 203. So far as the taxability of the property of a nonresident is concerned, the fiction of law that personal estate has no situs away from the person or residence of its owner is done away with, and the truth substituted as the rule of action. Matter of Romaine, 127 N". Y. 80, 27 N. E. 759, 38 St. Eep. 76, affirming 58 Hun, 109, 33 St. Eep. 784, 11 F. Y. Supp. 313. TAX IS ON SUCCESSION. The tax imposed is not a property tax, but a tax upon the right of succession. Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81, modifying 64 Hun, 639, 47 St. Eep. 47; Matter of Merriam, 141 N. Y. 479, 57 St. Eep. 593. In Matter of Hoffman, 143 1ST. Y. 327, 38 K E. 311, decided subsequent to the Act of 1892, of which the Act of 1896 is substantially a re-enactment, the court said: "There are some changes of phraseology in the more important sections, but I think it re- mains true that the tax is only upon the right of succession, levied upon successors in respect to the shares to which they succeed, and not upon the decedent's estate as such." The taxa- bility of United States government bonds is based upon this theory of the law. Matter of Plummer, 30 Misc. 19 ; affirmed, 47 App. Div. 625, 161 N. Y. 631 ; affirmed as Plummer v. Coler, 178 IT. S. 115. In Matter of Yanderbilt, 172 N. Y. 69, decided subsequent to the Act of 1896, Judge Cullen, in writing one of the prevailing opinions, said: "The fact that the tax is to be paid out of the property does not render it a tax on property * * * a tax is a property tax when imposed by reason of the ownership of property ; a transfer tax when imposed on the method of its acquisition." In the same case, Haight, J., said : 120 Act of 1896. § 220 Value of estate determines liability. " Under the view taken by me of this statute the transfer tax still remains a tax upon succession." The tax being on succession, the fact that property is not liable for a general tax does not prevent its taxation under an Inheritance Tax Law. Matter of Knoedler, 140 N. Y. 377, 55 St. Eep. 666; Matter of Hellman, 174 N. Y. 254, reversing 77 App. Div. 355; Matter of Plummer, 30 Misc. 19; affirmed, 47 App. Div. 625, 161 N. Y. 631 ; affirmed as Plummer v. Coler, 178 IT. S. 115. AMOUNT OF ESTATE DETERMINES LIABILITY TO TAX- ATION. Rule prior to Laws 1892, chap. 399.— Under the Act of 1885 and its subsequent amendments, prior to the Act of 1892, the term " estate," subject to tax, referred to the estate passing to the beneficiary and not the aggregate estate of the decedent. Mat- ter of Cager, 111 N. Y. 343; Matter of Howe, 112 N. Y. 100; Matter of Westurn, 152 N. Y. 93 ; Matter of Weed, 10 Misc. 628. See page 11 for decisions under Act of 1885. Rule subsequent to Laws 1892, chap. 399. — The former rule that taxability was determined by the amount of the estate passing to the beneficiary was changed by reason of the defini- tion of the words "estate" and "property," in section 22 of the Act of 1892, re-enacted without change in substance in the Act of 1896, § 242, under which it was held that the succession tax imposed by the Act of 1892 continued to be levied upon successors in respect to the shares to which they succeed, and not upon the decedent's estate ; but in so far as it depends upon the amount involved, it is the aggregate amount of the estate passing to taxable persons and not the share of any particular legatee, which determines the liability to, or exemption from, the tax. Matter of Hoffman, 143 N". Y. 327, 38 N. E. 311, modify- ing 76 Hun, 399, 58 St. Eep. 699, 27 N. Y. Supp. 1086; Matter of Hall, 88 Hun, 68, 68 St. Eep. 538, 34 N. Y. Supp. 616. Matter of Hoffman was followed in the later case of Matter of Corbett, 171 N. Y. 516, 64 N. E. 209, affirming 55 App. Div. 124, 67 N. Y. Supp. 46. In the latter case the decision was based upon the language of section 22 of the Act of 1892 (§ 242 of the Act of 1896), providing that the words "estate" and "property" shall be taken to mean the property or interest therein of the decedent or intestate, etc., " passing or transferred to those not herein specifically exempted from the provisions of this act." Thus, if in an estate of $11,000 personalty, $7,000 Act of 1896. 121 Test of exemption; application of act. § 220 is transferred to collaterals and $4,000 to a widow, all shares are taxable; but if $7,000 is transferred to a bishop or a do- mestic religious corporation and the balance to the widow, no portion of the estate is taxable, a bishop and a domestic religious corporation being specifically exempted from the provisions of the act. In Matter of Bliss, 6 App. Div. 192, 39 N. Y. Supp. 875, decided prior to the Corbett case, it was held that where a testator leaves an estate of $829, giving $414 to his sister and $207 to each of his two nephews, the legacies to the nephews are not taxable, as the legacy of the sister being less than $10,000, is " specifically exempted," within the meaning of section 22 of the Act of 1892. This decision was followed in Matter of Conklin, 39 Misc. 771, decided subsequent to Matter of Corbett, supra, and the Corbett case was distinguished. The decision was also followed in Matter of Garland, 40 Misc. 579. In a recent case, Matter of Rosendahl, 40 Misc. 542, no attempt was made to distinguish the Corbett case, and a be- quest of less than $500 to a nephew was held taxable, although the balance of the estate passing to sisters was less than $10,000. The surrogate stated in reference to the Corbett case : "I am bound by this latest utterance of our highest court to hold that the Bliss case is overruled and that the other decision (Matter of Conklin) made on its authority is erroneous." Gifts causa mortis part of assets. — In determining the amount of an estate, gifts causa mortis are to be considered a part of the assets. Matter of Edelmuth, N. Y. L. J., June 11, 1902. TEST OF EXEMPTION. It was held under the Act of 1892, that in view of the defini- tion of the term " property " in section 22, it is the jurisdiction of the State to subject property to taxation under its general taxing power, and not whether it has been exercised, which is the test of exemption under section 1. Matter of Sherman, 153 N. Y. 1, 46 N". B. 1032, affirming 15 App. Div. &28. APPLICATION OF ACT. The Act of 1896 re-enacted the Act of 1892 as a whole, in- cluding the definition of "property" in section 22. This definition limited the application of the act to property "over which the State has jurisdiction." It was under this lan- guage that United States bonds were held not taxable. Matter 122 Act of 1896. § 220 Taxable transfers. of Sherman, 153 N. Y. 1, 46 N. B. 1032, affirming 15 App. Div. 628. This clause remained in the law until the enact- ment of Laws 1898, chap. 88, in effect March 21, 1898. Ex- cept as affected by this definition of property and changes in the law in respect to nonresidents, the decisions under the Act of 1885 and its several amendments, and the Act of 1892, are applicable to transfers under the Act of 1896. TAXABLE TRANSFERS. Personal property of a resident decedent wherever situated. — Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81; Matter of Coming, 3 Misc. 160, 51 St. Eep. 265, 23 N. Y. Supp. 285. Personal property of a resident without the State, although the property passes to foreign heirs or next of kin. Matter of Dingman, 66 App. Div. 228, 72 N. Y. Supp. 694. Transfers by resident to beneficiary without the State. — Where a transfer is by a resident of property within this State, it is not important whether the beneficiaries reside in this State or elsewhere. Matter of Green, 153 N. Y. 223, 47 N. E. 292, reversing 7 App. Div. 339, 40 N. Y. Supp. 1019. Stocks of foreign corporations owned by a resident decedent. — Matter of Merriam, 141 N. Y. 479, 57 St. Eep. 593, 36 N. E. 505. life insurance policies held by a resident testator at the time of his death and payable to the testator, his executor, adminis- trator or assigns or to his legal representatives. — Matter of Knoedler, 140 N. Y. 377, 55 St. Eep. 666. Good will of a business. — Matter of Jones, 69 App. Div. 237; reversed on another point in 172 N. Y. 575. This decision was under the Act of 1887. Matter of Dun, 40 Misc. 509, reversing 39 Misc. 616. Decided under the Act of 1896. Judgment against heir or legatee. — Matter of Smith, 14 Mise. 169. Decided under Act of 1885. Note of legatee included in residue. — Matter of Tuigg, 15 N. Y. Supp. 548, 2 Connoly, 633. Decided under the Act of 1887. Equity in mortgaged lands. — Matter of Kene, 8 Misc. 102, 60 St. Eep. 163, 29 N. Y. Supp. 1078. Decided under the Act of 1885. Interest in realty of joint-stock association. — Matter of Jones, 172 N". Y. 575, reversing 69 App. Div. 237, 74 N. Y. Supp. 702. Decided under the Act of 1887. Act of 1896. 123 Taxable transfers. § 220 A bequest for masses, if not included as a funeral expense.— Matter of Black, 5 N. Y. Supp. 452, 1 Connoly, 477. Decided under the Act of 1887. Debts due from legatee. — Matter of Bartlett, 4 Misc. 380; 25 Supp. 990. Decision under the Act of 1892. Partnership agreement. — An agreement between two partners that all the property held by them in their joint or several names is held by them jointly, is a mere partnership agreement; and where an interest of one of the partners dying intestate was distributed to his children without objection from the surviving partner, such transfers are taxable and the appraiser is not justi- fied in making any deduction on account of such alleged joint tenancy agreement. Matter of Wormser, 51 App. Div. 441, modifying 28 Misc. 608, 59 N. Y. Supp. 1088. Decision under the Act of 1892. An interest in a fund in partition action. — An interest in a fund deposited to the credit of a partition action is taxable as personal property. Matter of Stiger, 7 Misc. 268, 58 St. Rep. 529, 28 N. Y. Supp. 163. Decision under the Act of 1892. Legacies for services, if accepted, are taxable. — Matter of Doty, 7 Misc. 193, 56 St. Eep. 626, 27 1ST. Y. Supp. 653. De- cided under the Act of 1892. A transfer by will, subject to taxation under the Act of 1892, is not limited to property gratuitously given by will, but extends to a testamentary transfer in payment of a debt, if the testator's bequests be accepted by the beneficiary. Matter of Gould, 156 N". Y. 423, 51 N. E. 287, modifying 19 App. Div. 352, 46 N. Y. Supp. 506. Seat in Stock Exchange. — The transfer of a seat in the New York Stock Exchange by a nonresident decedent was held taxable under the Act of 1892 in Matter of Glendinning, 68 App. Div. 125, 74 N". Y. Supp. 190 ; affirmed without- opinion, 171 N. Y. 684. The definition of " property " in section 242 was held to in- clude the transfer of a seat in the New York Stock Exchange in Matter of Bellman, 174 N. Y. 254, reversing 77 App. Div. 355. Legacies to the "United States. — Matter of Merriam, 141 N". Y. 479, 57 St. Eep. 593, affirming 73 Hun, 587, 56 St. Eep. 159, 26 N". Y. Supp. 191. Decided under the Act of 1892. Matter of Cullom, 145 N. Y. 593, affirming 76 Hun, 610, 27 K Y. Supp. 1105. Decided under the Act of 1891. United States bonds, since March 21, 1898.— A transfer of United States bonds since the enactment of Laws 1898, chap. 88, is taxable, although they were issued under an act which 124 Act of 1896. 220 Taxable transfers. provided that they should be exempt from taxation by the United States and from taxation in any form by or under State, munici- pal, or local authority. Matter of Plummer, 30 Misc. 19, 62 N. Y. Supp. 1024; affirmed, 47 App. Div. 625, 161 N. Y. 631; affirmed as Plummer v. 'Coler, 178 U. S. 150. Stock pledged as collateral to loan. — Where the executor of a resident decedent who pledged stock in a domestic bank as col- lateral to a loan pays off the loan and redeems the stock, it be- comes presently taxable. Matter of Hurcomb, 36 Misc. 755, 74 K Y. Supp. 475. A devise of realty with general right of disposition. — Under a testator's devise of all his realty to his wife for life " to be retained or disposed of as she may think proper," she takes an absolute fee (Laws 1896, chap. 547, § 131), and the assess- ment of the transfer tax on the testator's heirs, on the theory that the real estate descended from him to them, merely because the wife died without executing her power of disposition, is erroneous. Matter of Lynn, 34 Misc. 681, 70 N. Y. Supp. 730. Legacy not expressly in lieu of dower. — A legacy of $10,000 to a wife, not expressly in lieu of dower, but in addition to an- other provision of the will expressly in lieu of dower, is subject to tax. Matter of Be Graaf, 24 Misc. 147, 53 N". Y. Supp. 591. Leasehold interest in land. — A tenant's leasehold interest in land is personal property within the meaning of section 221, notwithstanding that buildings erected by the tenant and re- served to him by the lease may be assessed against the tenant as land under the General Tax Law. Matter of Althause, 63 App. Div. 252; affirmed without opinion, 168 K Y. 670. Distributive share in real estate not converted at death of legatee. — ■ The distributive share of a daughter in the real es- tate of her father directed by his will to be converted into money, but remaining unconverted at the time of her death, is personalty as to her, and the succession thereof to her legatee is taxable. The ruling of Matter of Sutton, 3 App. Div. 208 ; affirmed with- out opinion, 149 N. Y. 618, does not apply. The test as to whether the property is personalty or realty is whether in the absence of a will the property would have passed under the Stat- ute of Distribution or the Statute of Descent. Matter of Mills, 32 Misc. 493. Direction to "withdraw" claim. — A statement in the will of a decedent directing his executor to "withdraw" one-half of the claims the decedent has presented to his brother's executrix, and further declaring that he "forgives" half, amounts to a Act of 1896. 125 Nontaxable transfers. § 220 bequest of that half and is taxable. Matter of Wood 40 Misc 155. Property of nonresidents. — For decision under this head, see " Nonresidents," p. 131. NONTAXABLE TRANSFERS. United States bonds prior to March 21, 1898. — By force of the provisions of section 22 of the Act of 1892 and section 242 of the Act of 1896, limiting the meaning of the words " estate " and "property" to property "over which this State has any jurisdiction for the purpose of taxation," a transfer of United States bonds was held not taxable since May 1, 1892. Matter of Whiting, 150 K Y. 27 ; Matter of Sherman, 153 N. Y. 1, 46 K E. 1032, affirming 15 App. Div. 628 ; Matter of Coogan, 27 Misc. 563; affirmed without opinion, 45 App. Div. 628, 162 N. Y. 613. By Laws 1898, chap. 88, in effect March 21, 1898, the words of limitation above referred to were omitted, and since that date a transfer of government bonds has been taxable. Matter of Plummer, 30 Misc. 19 ; affirmed, 47 App. Div. 625, 161 N. Y. 631, 178 U. S. 115. Bequest with precatory words of desire in favor of exempt corporation. — Such request held to convert the legatee into a trustee and to exempt the bequest. Matter of Murphy, 4 Misc. 230. Decision under the Act of 1892. Real estate of resident without the State.— Lorillard v. People, 6 Dem. 268, 19 St. Eep. 263 ; Matter of Swift, 137 N. Y. 77, 50 St. Eep. 81. Decisions under the Acts of 1885 and 1887, respectively. Undistributed share of resident in nonresident estate. — Matter of Thomas, 3 Misc. 388, 24 N. Y. Supp. 713. Decision under Act of 1885. A legacy for a home during life. — Matter of Hulse, 15 N. Y. Supp. 770, 39 St. Rep. 402. Decision under Act of 1887. (This decision seems to be inconsistent with Matter of Gould, 156 N. Y. 423, holding that a legacy for services, if accepted, is taxable.) A bequest for the maintenance of a burial lot. — Matter of Vinot, 7 1ST. Y. Supp. 517, 26 St. Rep. 610 ; followed, Matter of Edgerton, 35 App. Div. 125 ; affirmed without opinion, 158 N. Y. 671. Decision under Act of 1892. Bequest to executor impressed with trust for exempt person. — A bequest to an executor individually subject to a valid oral 126 Act of 1896. § 220 Nontaxable transfers. trust in favor of testator's brother is exempt. Matter of Farley (Surr. Ct), 15 St. Eep. 727. Decision under Act of 1887. Stock pledged ai collateral to loan. — The title to stock pledged with brokers as collateral is in the brokers, and where after the pledgor's death they sell the stock for an amount in- sufficient to pay their loan, the proceeds are not taxable. Matter of Havemeyer, 32 Misc. 416. legacy to brother chargeable upon realty. — Such a legacy is not subject to tax because it is an interest in land. Matter of C'heseorough, 34 Misc. 365, 69 N. Y. Supp. 848. Decision ren- dered before amendment of 1903, imposing tax on real property. Articles enumerated in section 2713 of Code. — The articles enumerated in the Code, § 2713, providing that if a man having a family dies, leaving a widow and no minor children, they " shall not be deemed assets," but shall belong to the widow, are not subject to tax, whether or not they were actually set apart to her by the appraisers and whether or not he died testate. Matter of Page, 39 Misc. 220. Proceeds of gratuity fund. — The proceeds of a gratuity fund of the New York Produce Exchange, payable only to bene- ficiaries of a deceased member, are not assets of his estate, and not subject to tax. Matter of Fay, 25 Misc. 468, 55 N. Y. Supp. 749. Trust fund to pay annuity. — Where a husband in his lifetime has agreed to pay his wife a life annuity with the option to her of demanding at his death from his estate such gross sum calculated upon the expectancy of her life, as will discharge pro- spective payments of annuity, in release of her rights against him or his estate, his creation by will of a trust to continue the annuity in case she refuses a gross sum, is not, if she fails to exercise her election, subject to tax. Matter of Daniell, 40 Misc. 329. A legacy of an interest in land made to a corporation which the decedent upon certain specified contingencies expresses a wish to have incorporated but which has never become incorpo- rated cannot be subjected to tax as no interest can pass to a body corporate which is not in existence. — Matter of Chese- brough, 34 Misc. 365, 69 N". Y. Supp. 848. See, however, Matter of Graves, 171 N. Y. 40, in which a devise for charitable pur- poses, although not made to a corporation, was held exempt as if made to a corporation. Act of 1896. 127 Transfers, in contemplation of, at, or after, death,. § 220 TRANSFERS IN CONTEMPLATION OF DEATH OR TO TAKE EFFECT AT OR AFTER DEATH. Subdivision 3 not retroactive. — Subdivision 3 of section 1 (section 220) is to be restricted to grants or gifts causa mortis mentioned in the preceding portion of the subdivision, and does not include transfers by will or intestacy so as to subject to taxa- tion rights of succession which accrued before the statute took effect. Decided under the Act of 1892. Matter of Seaman, 147 N. Y. 69, 69 St Eep. 316, reversing 87 Hun, 619; Talmadge v. Seaman, 85 Hun, 242, 66 St. Eep. 302, 32 N. Y. Supp. 906. Transfers Held Taxable. The creation of a trust reserving to the grantor the income during his life, and after his death distributing the property among designated remaindermen, is a transfer deemed " intended to take effect in possession of enjoyment at or after the death " of the grantor or donor, and is therefore taxable. Decided under the Act of 1892. Matter of Green, 153 N. Y. 223, 47 N. E. 292, reversing 7 App. Div. 339, 40 N. Y. Supp. 1019, 75 St. Rep. 403. A trust deed did not constitute an absolute gift of the grantor's property during his life, so as to exempt the transfer from taxa- tion under the Act of 1892 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 he continued to be able to' enjoy it and to manage and dispose of it as effectually as he might previously 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 acts of the trustee in selling or disposing of the securities or with respect to investments ; Matter of Masury, 28 App. Div. 580 ; affirmed, 159 N. Y. 532, distinguished. Matter of Bostwick, 160 N. Y. 489, 58 N. E. 208, affirming 38 App. Div. 223, 56 N. Y. Supp. 495. Deeds of real property to her nieces executed eight days be- fore death by an aunt seventy-nine years of age who was suf- fering from consumption from which she knew she never would recover, are to be regarded as gifts inter vivos, made in contem- plation of death, and the property transferred is taxable. Matter of Birdsall, 22 Misc. 180, 49 N.'Y. Supp. 450; affirmed without opinion, 43 App. Div. 624. 128 Act of 1896. § 220 Taxable transfers in contemplation of death, etc. By a trust deed executed in 1892, Eugene Gr. Cruger trans- ferred to trustees certain personal property with directions to collect the income and to pay to his daughter the sum of $1,200 annually, and any balance of income to himself, and at his death, to pay over the fund to the daughter, if living, and, if she be dead, to her issue, or, in default of issue, to such persons as she should by will appoint, or in default of appointment to such persons as would be entitled to take if. she had died intestate and in possession of the property, except her mother. The daughter died September 2, 1896, intestate, unmarried, without issue, and without having executed the power of appointment. The creator of the trust died April 4, 1898. Held, that the trust fund vested in the daughter's next of kin as remaindermen upon the death of the father, and that such remainders were subject to tax un- der Laws 1892, chap. 399, § 1, subd. 3. Matter of Green, 153 N. Y. 223, followed; Matter of Cruger, 54 App. Div. 405; af- firmed without opinion, 166 N. Y. 602. A gift intended to take effect in possession or enjoyment at the death of the donor is taxable, although the donee survived the donor for only three days. Both estates are subject to the tax. Matter of Borup, 28 Misc. 474, 59 N. Y. Supp. 1097. Where a person after placing unrecorded deeds executed by him, and securities assigned by him in envelopes inscribed as the " property " of the proposed transferees, and after placing the envelopes in a box in a bank, labeled with his name and that of a transferee, continues to control the real estate and receive the income of the securities, the property on his death is subject to transfer tax. The transfer did not take effect until his death. Matter of Sharer, 36 Misc. 502, 73 N. Y. Supp. 1057. A gift of corporate stock, reserving to the donor all dividends declared thereon during his life and the right to vote upon it the same as if no transfer had been made, is taxable as a trans- fer intended "to take effect in possession or enjoyment at or after * * * death." Matter of Brandreth, 169 N. Y. 437, 62 K E. 563, reversing 58 App. Div. 575, 69 K Y. Supp. 142. A gift of securities, under an agreement that the donor should have during his life " all or such part of the net income thereof as he might wish," the donee to have the possession and manage- ment of the securities, does not make the donee the absolute owner thereof, but only trustee until the death of the donor; and such gift is taxable as a transfer to take effect after the death of the donor. Matter of Cornell, 170 N. Y. 423, 63 N. E. 445, reversing 66 App. Div. 162, 73 K Y. Supp. 32, and fol- lowing Matter of Brandreth, 169 N. Y. 437. Act of 1896. 129 Nontaxable transfers in contemplation of death, etc. § 220 Property passing under a trust deed, providing that the net income was to go to the donor during life, and after his death in a certain specified manner, held subject to tax upon his death. Matter of Masury, 28 App. Div. 580, 51 N. Y. Supp. 331 ; af- firmed, 159 N. Y. 532. Where a husband in his lifetime transferred to his wife's name firm profits which he had invested with his firm in a special account, and continued this practice until her death, the property was held taxable on her death, although his chil- dren signed an instrument permitting him to treat the money as his own. Matter of Anthony, 40 Misc. 497. Transfers Held not Taxable. Property passing under a trust, the net income to go imme- diately to the beneficiaries and the principal on a certain date to be paid over to designated parties, the deed reserving the right "to revoke and annul the same during my lifetime," held not taxable as not made in contemplation of death or in- tended to take effect in possession or enjoyment at or after death. Matter of Masury, 28 App. Div. 580, 51 N. Y. Supp. 331 ; affirmed, 159 N. Y. 532. Note. — Effect of above decision limited in Matter of Bost- wich, 160 N. Y. 489. Where stocks were transferred in consideration of an agree- ment evidenced by a bond of the transferee conditioned for the payment of an annuity to the grantor and certain other per- sons, under which the stock was to be deposited as collateral for the performance of the agreement, and in case of default the depositary might collect sufficient dividends to pay the annuities, or, if necessary, sell a portion of the stock, — Held a gift inter vivos and not taxable. Matter of Edgerton, 35 App. Div. 125, 54 N. Y. Supp. 700; affirmed without opinion, 158 N. Y. 671. A gift inter vivos may become a gift causa mortis if made in extremis or under circumstances which would entitle the donor to recover it back. The rule may be stated to be that property transferred inter vivos is not taxable under the pro- visions of the Taxable Transfers Act, unless made and received for the purpose of evading its provisions. Matter of Spaulding, 49 App. Div. 541, 63 N. Y. Supp. 694; affirmed without opin- ion, 163 K. Y. 607. The president of a corporation being ill and advised by his physician that when he recovered he would be obliged to take 9 130 Act of 1896. § 220 Nontaxable transfers in contemplation of death, etc. a long vacation, transferred all his stock in the corporation to his wife, except one share, which he retained so that he might continue to be a member and have a right to vote at its meet- ings; and on the same day executed a will making his wife sole beneficiary. Three weeks later he died. Held, that the trans- fer was not made in contemplation of death or to take effect after death. Matter of Mahlstedt, 67 App. Div. 176, 73 N. Y. Snpp. 818; appeal dismissed, 171 N. Y. 652. A transfer and delivery of stock by a man eighty-six years of age, made over three years prior to death, where it does not ap- pear that the gift was made in bad faith or with the intent of evading the transfer tax, or that it was transferred subject to a trust or enforceable reservation relative to the payment of the dividends thereon to the donor, held to be a gift inter vivos and not made in contemplation of death, although the donor received the dividends during his lifetime and continued to be the president of one company and director of another whose stock he transferred. Matter of Bullard, 76 App. Div. 207, 78 N. Y. Supp. 491, affirming 37 Misc. 663, 76 N. Y. Supp. 309. An agreement by a transferree to support the transferrer and to supply him with money as needed does not, in the absence of proof that the transferrer reserved the beneficial use and en- joyment of the property during his life, limit the absolute char- acter of the transfer or render it taxable on the ground that it was not intended to take effect in possession in enjoyment until after the death of the transferrer. Matter of Thome, 44 App. Div. 8; appeal dismissed, 162 1ST. Y. 238. An unconditional gift of securities, to his children, by a man eighty-six years of age, whose faculties are unimpaired, held a gift inter vivos, and not made in contemplation of death or for the purpose of evading the tax and not subject to tax. Matter of Spauldiny, 49 App. Div. 541, 63 N. Y. Supp. 694 ; affirmed, no opinion, 1 63 N . Y. 607. A claim by the State that real property alleged to have been conveyed by a decedent " in contemplation of death," has es- caped taxation cannot be heard unless the grantee has had no- tice of the proceeding to tax it. Matter of Wood, 40 Misc. 155. A transfer of securities made by an old man in poor health, for some time contemplated by him and made within two months of his death, was held not to have been made in contemplation of death and not taxable. Matter of Crary, 31 Misc. 72, 64 -V. Y. Supp. 566. Act of 1896. 131 Property of nonresidents. § 220 Property transferred by antenuptial agreement. — By an antenuptial agreement A. assigned to B. 2,000 shares of stock. On the following day B., by agreement, reassigned the stock to A., upon trust to invest and reinvest the same, and to apply the income to their mutual use during their joint lives. Upon the death of either the property was to vest absolutely in the survivor. Held, upon the death of A., that such property was not subject to tax, it appearing that the two agreements were not contemporaneous or made with the intent to evade the tax, but the original transfer was for a good and valid consideration. Matter of Miller, 77 App. Div. 473, 78 N. Y. Supp. 930, re- versing 37 Misc. 449, 75 N. Y. Supp. 929. The amount paid to a widow under an antenuptial agree- ment, by the terms of which her intended husband agreed, in lieu of her renunciation of dower and of her rights as widow, to provide for her a fixed sum by his will or out of his estate in any event, should she survive him, is a debt of his estate and not subject to tax. The agreement is made in contemplation of marriage and not of death. Matter of Baker, 83 App. Div. 531, 38 Misc. 151, 77 N. Y. Supp. 170. Decisions under Act of 1885. — Matter of Crosby, 46 St. Eep. 442, 20 N. Y. Supp. 62; also Matter of Johnson, 47 St. Rep. 391, 19 N. Y. Supp. 963 ; also Matter of Edwards, 85 Hun, 436, 66 St. Eep. 231, 32 N. Y. Supp. 901; affirmed without opin- ion, 146 N. Y. 380, p. 15. PROPERTY OF NONRESIDENTS. The Act of 1885 did not apply to transfers of property made by nonresidents. Matter of Enston, 113 N. Y. 174, 22 St. Rep. 569, reversing 46 Hun, 506; Matter of Hall (Gen. T.), 8 N. Y. Supp. 556; Matter of Tulane, 51 Hun, 213, 21 St. Rep: 191, 4 N. Y. Supp. 36. The law was first applied to nonresidents by the amendment of 1887, chap. 713, in effect June 25, 1887, but its application was limited by the language of section 15, requiring the presence of real property within the State in order to confer jurisdiction on a surrogate, with the result that personal property within the State, although clearly within the terms of the law, could not be taxed unless there was also real property upon which the jurisdiction of a surrogate could be based. Matter of Embury, 19 App. Div. 214; affirmed without opinion, 154 N. Y. 746. The Act of 1892, in effect May 1, 1892, changed the law in this respect and expressly imposed a tax upon the transfer of all 132 Act of 1896. § 220 Nonresidents; test of property. property within the State of a nonresident, eliminating also the provision requiring the ownership of real property within the State as the basis of a surrogate's jurisdiction. The courts have endeavored to reach all property of a nonresident upon which a tax can be constitutionally imposed. As said in Mat- ter of Romaine, 127 N. Y. 80, the fiction of the law that per- sonal property follows its owner has been done away with, and the truth substituted as a rule of action. In some instances the courts have even gone so far as seemingly to create new fictions to accomplish the purpose. The decisions under the Acts of 1887 and 1892, holding a particular class of property tax- able or nontaxable, are of equal force, under the Act of 1896, except such of the decisions under the Act of 1887 as held per- sonalty nontaxable by reason of there being no realty within the State. What constitutes residence. — Testator having a home in New Jersey held a nonresident, although he described himself in his will and codicils as a resident of the city and county of >vew York. Matter of Rogers, 1ST. Y. L. J., January 24, 1903 ; affirmed without opinion, App. Div. . See also People ex rel. Martin v. Feitner, 33 Misc. 357. The test of what constitutes property ■within the State for the purposes of a succession tax is, according to Judge Vann, '*' where the right, whatever it may be, has a money value and can be owned and transferred, but cannot be enforced or con- verted into money against the will of the person owning the right without coming into this State." Matter of Houdayer, 150 N. Y. 37, 44 1ST. E. 718, 55 Am. St. Eep. 642, 34 L. E. A. 325, reversing 3 App. Div. 474, 73 St. Eep. 784, 38 N". Y. Supp. 323. This reasoning does not appear to have been concurred in by a majority of the judges. However, see Blackstone v. Miller, TJ. S. , considered at p. 134, in which the court goes so far as to say that jurisdiction over the debtor makes the debt property within this State for the purposes of taxation. Taxation in State of residence does not relieve the property within this State of a nonresident decedent from the transfer tax. Matter of Burr, 16 Misc. 89, 74 St. Eep. 490, 38 N. Y. Supp. 811. Appropriation of property without State to pay specific legacies. — Where a nonresident decedent's estate is partly within and partly without the State, the executors may elect to appro- priate that portion without the State to the payment of specific legacies given to collaterals and charities, and thus avoid the tax thereon, although the property within the State passes to Act of 1896. 13J Nonresidents; taxable transfers. § 220 persons not taxable. It would seem, however, that such legacies must be actually paid out of the property elected to be appro- priated to their payment. Decision under Act of 1887. Mat- ter of James, 144 N. Y. 6, 62 St. Rep. 855, affirming 77 Hun, 211, 59 St. Eep. 768, 28 N. Y. Supp. 351. Taxable Transfers. Personal property habitually kept or invested in the State. — Decisions under Act of 1887. Matter of Bomaine, 127 N. Y. 80, 38 St. Rep. 76, affirming 58 Hun, 109, 33 St. Rep. 784, 11 N. Y. Supp. 313; Matter of Phipps, 143 N. Y. 641, 37 N. E. 823, affirming without opinion, 77 Hun, 325, 59 St. Rep. 769, 28 N. Y. Supp. 330. Money loaned to decedent's firm. — Money loaned to a firm by a nonresident partner, upon which he receives ratably such profits as are earned by the firm, is invested capital and is sub- ject to transfer fax. Matter of Probst, 40 Misc. 431. Profits in firm not withdrawn. — Profits which a nonresident partner permits to remain on deposit with the firm, subject to sight draft, are taxable assets. Matter of Probst, 40 Misc. 431. Stock of domestic corporation, the certificates of which were within or without the State at time of death. Decisions under Act of 1892. Matter of Bronson, 150 N. Y. 1, 44 N. E. 707, 55 Am. St. Rep. 632, 34 L. R. A. 238, reversing on this point 1 App. Div. 546, 73 St. Rep. 203, 37 N. Y. Supp. 476 ; Matter of Whiting, 150 N. Y. 27, 44 N. E. 715, modifying 2 App. Div. 590, 73 St. Rep. 814, 38 N. Y. Supp. 131. Bonds of foreign or domestic corporation within the State at time of death, both registered and coupon. Decisions under Act of 1892. Matter of Whiting, supra; Matter of Morgan, 150 N. Y. 35, 44 N. E. 1126, affirming 2 App. Div. 619. Bonds and stock of domestic corporations within State, although ancillary letters are not issued. — Bonds and stocks of corporations of the State of New York, owned by a nonresident, and within the State at the time of his death, are subject to tax, although ancillary letters have not been issued in this State. Matter of Pullman, 46 App. Div. 574. Stock of domestic corporation in name of broker. — The interest of a nonresident in the certificates of stock of a domestic corporation is taxable, although the stock stands on the books of the corporation in the names of the stock brokers who pur- chased it for him, by whom it had been assigned in blank and delivered to the decedent. Matter of Newcomb, 71 App. Div. 134 Act op 1896. § 220 Nonresidents; taxable transfers. 606, 76 N. Y. Supp. 222; affirmed on opinion below, 172 N. Y. (i08. Stock of national bank. — Stock in a national bank doing business in this State, and belonging to a nonresident decedent, is subject to transfer tax, although the certificate is without the State at the time of his death. Such a bank is to be consid- ered a domestic corporation. Matter of Gushing, 40 Misc. 505. Stock of domestic corporation, subject to life estate. — Under the will of a nonresident giving to her mother for life all her property, with power to reinvest the same, and after the death of the mother to a niece absolutely, stock of a domestic cor- poration is taxable, even though the life estate has not ter- minated and the stock is not within the State. The life tenant is not in a position to complain that the principal, to the use of which she is entitled, is diminished by the tax, nor can the remainderman resist on the ground that she may never come into possession of the property. Matter of Bushnell, 73 App. Div. 325 ; affirmed without opinion, 172 N. Y. 649. Deposit of money. — A deposit of money in New York State belonging to a nonresident at the time of death is subject to transfer tax. Matter of Blackstone, 69 App. Div. 127, 74 N. Y. Supp. 508; affirmed, 171 N. Y. 682, on authority Matter of Houdayer, 150 N. Y. 37; affirmed, Blackstone v. Miller, U.S. , on the ground that such a deposit, while not tangible property within the State, is a debt owed by a resident and sub- ject to the jurisdiction of the State, and thus taxable within the State. Money deposited in a bank within the State by a nonresident, and within the State at the time of his death, is subject to trans- fer tax, although commingled with trust funds in an account opened by him as trustee. Decision under Act of 1892. Mat- ter of Houdayer, 150 N. Y. 37, 44 N. B. 718, 55 Am. St. Kep. 642, 34 L. E. A. 325, reversing 3 App. Div. 474, 73 St. Eep. 784, 38 N. Y. Supp. 323. Money of a nonresident deposited in savings banks; money in the hands of his attorney in the State, and bonds secured by mortgage on lands in this State, are taxable. Decision under Act of 1892. Matter of Burr, 16 Misc. 89, 74 St. Rep. 490, 38 N". Y. Supp. 811. It does not appear whether the bonds in this ease were within or without the State. If without, they were probably exempt under the later decision under the 1896 law in Matter 1 of Preston, 75 App. Div. 250. But see Blackstone v. Miller, IT. S. , supra. Act of 1896. 135 Nonresidents; nontaxable transfers. § 220 A bank account and bond and mortgage within the State at time of death. Decision under Act of 1887. Mattel- of Clark (Surr. Ct), 9 IS'. Y. Supp. 444, 2 Connoly, 183. Nontaxable Transfers. Shares of stock of foreign corporations, although within the State at the time of death. Decision under Act of 1887. Mat- ter of James, 144 K. Y. 6, 62 St. Eep. 855, 38 N. E. 961, affirm- ing 77 Hun, 211, 59 St. Eep. 768, 28 N. Y. Supp. 351. Bonds of domestic corporations not within the State at the time of death. Decision under Act of 1892. Matter of Bronson. 150 N. Y. 1, 44 A T . E. 707, affirming, on this point, 1 App. Div. 546, 73 St. Eep. 203, 37 N. Y. Supp. 476. Stocks and bonds pledged. — Stocks and bonds of domestic corporation owned by a nonresident and pledged in this State at the time of his death, and at the time of appraisal, as se- curity for debts due to a resident of the State, are not taxable, the title being in the pledgee. Matter of Pullman, 46 App. Div. 574. Note. — It would seem, however, that if the indebtedness be discharged before the appraisal is had, and an equity in the stocks and bonds pledged result, such equity would be taxable. See following language of opinion at page 578 : " In pledge the title to them is in the pledgee, and they are not in a situa- tion to be taxed now as property of the estate of Mr. Pullman. All of their amount may bo required to pay the debts to which these bonds and stocks are collateral, and the creditor's security should not be diminished at this time." If the securities are still in pledge at the time" of the appraisal, taxation thereof car be suspended by the appraiser's report and the order fixing tax until the indebtedness is liquidated. See also as sustaining these views, Matter of Hurcomb, 36 Misc. 755. Money temporarily within State. — Money of a nonresident temporarily on deposit within the State at the time of his death for the purpose of investing it in the stock of a foreign cor- poration is not subject to tax. Matter of Leopold, 35 Misc. 369, 71 N. Y. Supp. 1032. Insurance policies. — Policies issued by a domestic life insur- ance company upon the life of a nonresident and which were not within this State at the time of his death are not subject to tax. Decision under Act of 1892. Matter of Abbett, 29 Misc. 567, 61 N. Y. Supp. 1067. Policies of a domestic life insurance company upon the life of a nonresident, within this State at the time of his death, and 136 Act of 1896. § 220 Nonresidents; nontaxable transfers. payable to his estate, are not subject to the transfer tax. Mat- ter of Horn, 39 Misc. 133. Eight to legacy from resident. — The right to a legacy given by the will of a resident to a nonresident is not subject to tax on the death of the nonresident before the estate of the resident has been administered upon. Decision under Act of 1887. Matter of Phipps, 143 N". Y. 641, 37 N. E. 823, affirming with- out opinion, 77 Hun, 325, 59 St. Eep. 769, 28 N". Y. Supp. 330. Debts due a nonresident from a resident are not subject to tax. Matter of Phipps, supra. In connection with this and the following decisions in the cases of nonresidents owning debts and bonds secured by mortgage on property in this State but kept without the State, the reasoning of the Supreme Court of the United States in Blachstone v. Miller, IT. S. , is of interest. The court in that case held that a deposit in a bank was a debt owed to the nonresident, and taxable as being sub- ject to the jurisdiction of the State. Debt owing by a domestic joint-stock association. — A debt on open account due by a domestic joint-stock association to the estate of a nonresident decedent, who at his death was its presi- dent and the owner of a majority of its stock, is not subject to the transfer tax. Matter of Horn, 39 Misc. 133. Debt due by a nonresident doing business in State. — A debt due a nonresident decedent from a nonresident debtor, who merely did business as a banker in this State and payable in the foreign State, the common residence of the parties, is not sub- ject to tax. Matter of Bentley, 31 Misc. 656, 66 N. Y. Supp. 95. Bonds secured by mortgages on real estate in this State, and kept without the State. — Bonds secured by mortgages on real estate in this State, owned by a nonresident, habitually kept by him in another State, and actually there at the time of death, are not taxable; decided on authority of Matter of Bronson, 150 N". Y. 1. Matter of Preston, 75 App. Div. 250, affirming 37 Misc. 236, 75 K Y. Supp. 251. Property of a nonresident decedent over which resident exercises power of appointment. — Where a nonresident testator whose property was and remained wholly in the State of his domicile gave to his daughter a life estate with power to ap- point the remainder, the exercise by her, at her death, and when a resident of this State, of the power, by a will executed and proved here, does not subject the shares of her appointees to the transfer tax. Matter of Thomas, 39 Misc. 136. Act of 1896. l^ Future and contingent interests. § 220 Bonds of United States within the State at death.. Matter of Whiting, 150 N. Y. 27, 44 N. E. 715, modifying 2 App. Div. 590, 73 St. Eep. 815, 38 N. Y. Supp. 131. Decision under Act of 1892. This decision was not based upon the question of residence, but upon the taxability of United States bonds under the Act of 1892. Since the amendment of section 242, article 10, by Laws 1898, chap. 88, in effect March 21, 1898, modifying the definition of property, it is probably without force. See Matter of Plummer, 30 Misc. 19, 62 N. Y. Supp. 1024; affirmed, 47 App. Div. 625, 161 N. Y. 631 ; affirmed as Plummer v. Goler, 178 U. S. 150. Personal property, not taxable under the Act of 1887, located within the State and owned by a nonresident who died before May 1, 1892, is not liable to taxation under the law, al- though the property was not removed from the State until after that date. Matter of Pettit, 65 App. Div. 30, 72 N". Y. Supp. 469 ; affirmed on opinion below, 171 1ST. Y. 654. After May 1, 1892, the ownership of real property within the State was not necessary to the jurisdiction of a surrogate. FUTURE AND CONTINGENT INTERESTS. Successive amendments to law. — The Act of 1896 re-enacted without substantial change the prior law relating to the time and manner of appraising future and contingent interests, and the payment of the tax thereon. Section 222, re-enacting the provisions of section 3 of the Act of 1892, provides that " Taxes' upon the transfer of any estate, property or interest therein lim- ited, conditioned, dependent or determinable upon the happening of any contingency or future event by reason of which the fair market value thereof cannot be ascertained at the time of the transfer as herein provided, shall accrue and become due and payable when the persons or corporations beneficially entitled thereto shall come into actual possession or enjoyment thereof." Section 230, re-enacting the provisions of section 11 of the Act of 1892, provides that where the value of an estate or in- terest cannot be appraised at the fair and clear market value thereof at the time of transfer, it shall be appraised in like manner at the time when such value first becomes ascertainable. [Both of the foregoing statutes seem to have continued in force until March 14, 1899, on which date they were apparently superseded by the enactment of Laws 1899, chap. 76, providing, among other things, for the immediate taxa- tion of all estates in remainder and the payment of the tax 138 Act of 1896. § 220 Future and contingent interests. forthwith out of the principal of the estates, and held constitu- tional in Matter of Vanderbilt, 172 N. Y. 69, and in Matter of Brez, 172 N. Y. 609. See p. 143. But said section 230 of the Act of 1896 amends section 11 of the Act of 1892 by providing that "whenever 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 limitation," thus obviating the necessity in such cases of postponing appraisal until the occurrence of the contingency or the death of the life tenant, or other termination of the par- ticular estate. This amendment was not retroactive and applies only to the life estate. Matter of Sloan, 154 N. Y. 109, 47 N. E. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. Moreover, section 226, re-enacting the provisions of section 7 of the Act of 1892, provides for the giving of a bond to defer payment of the tax on future or expectant interests until the beneficiaries come into actual possession or enjoyment of the prop- erty. This section, of course, was only applicable in case the value of the interest was presently ascertainable, and the tax charged thereon. [The foregoing statute would also seem to have become obsolete since the enactment of Laws 1899, chap. 76, requiring the imme- diate appraisal of all estates in remainder and payment of tax forthwith out of the principal of the estates. See note, supra.] The first important amendment to the Act of 1896 was Laws 1897, chap. 284, in effect April 16, 1897, which amends sec- tion "220 thereof by providing for the taxation of interests pass- ing upon the exercise of a power of appointment, and is fully considered under " Powers of Appointment," p. 145. Laws 1897, chap. 284, also amends section 230 of the Act of 1896 by providing that " estates in expectancy which are contingent or defeasible shall be appraised at their full, undi- minished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminu- tion for or on account of any valuation theretofore made of the particular estates, for purposes of taxation, upon which said estates in expectancy may have been limited;" thereby chang- ing the former rule of valuation, , viz., that of deducting from the principal the present value of the particular estate upon which it may be limited, estimated upon the basis of probable duration, and substituting the actual value of the estate passing to the remainderman or reversioner. This amendment cannot be deemed retroactive. Matter of Hosack, N. Y. L. J., Nov. 22, 1897 ; Matter of Meyer, 83 App. Div. 381. Act of 1896. 139 Future and contingent interests. § 220 The same amending section also broadens the rale as to the valuation of particular estates, requiring their appraisal at full value, without regard to any • contingent incumbrance or limita- tion thereon, but that in case of defeat or abridgment a propor- tionate amount of tax shall be refunded. It also further provides that where property shall be trans- ferred " 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 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 of benefit from the person from whom the title to their respective estates or interests is derived." The same amending section also authorizes the trustees of property devised or bequeathed to persons in succession, who are all liable to the same rate of taxation, to pay the taxes on the several estates out of the principal, and provides for composi- tion of the tax where all the persons are not liable at the same rate, or some are exempt, or the taxes are not presently payable. The amendment of section 230 made by Laws 1899, chap. 76, in effect March 14, 1899, provides that " When property is trans- ferred in trust or otherwise, and the rights, interests, or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, ex- tended, or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible under the pro- visions of this article, and such tax so imposed shall be due and payable forthwith out of the property transferred," with right to a refund with interest in case this amounts to an overpay- ment. Held constitutional in Matter of Vanderlilt, 172 N. Y. 69 ; and in Matter of Brez, 172 N. Y. 609. . See p. 143. The same amendment also attempted unconstitutionally to impose a tax upon remainders or reversions, which vested prior to June 30, 1885, when they shall come into the actual posses- sion or enjoyment of the person or corporation beneficially in- terested subsequent to the passage of the act. See Matter of Pell, 171 N. Y. 48, 63 N. B. 789, reversing 60 App. Div. 286, 70 F. Y. Supp. 196. The same amendment of 1899 also omitted the amendment of 1897 (supra), providing for the appraisal of expectant es- tates at their full, undiminished value. 140 Act of 1896. § 220 Future and contingent interests. The amendment of section 230 by Laws 1901, chap. 173, in effect April 1, 1901, attempted to restore, in more retroactive language, the amendment relating to the taxation of remainders at their full, undiminished value, made by section 230 of Laws 1897, chap. 284, which had been omitted by Laws 1899, chap. 76. Held not retroactive and, if retroactive, unconstitutional, in Matter of Meyer, 83 App. Div. 381, and apparently, therefore, void in view of the enactment of Laws 1899, chap. 76, taxing immediately all remainders. The same amendment also changed the unconstitutional pro- vision of the amendment of 1899, providing for the taxation of remainders and reversions vesting before June 30, 1885, as soon as they shall come into actual possession or enjoyment, by apply- ing the provision to remainders and reversions vesting before May 1, 1892, but even in that case it seems to be unconstitutional. Matter of Pell, supra. Time of transfer. — The death of the testator is the time of the transfer of title to a legacy in remainder, where there is no uncertainty who will take the remainder, although there is un- certainty when the legacy will be paid over to the remainder- man. Matter of Shane, 154 N. Y. 109, 47 N. E. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. Where property is bequeathed to a mother for life with re- mainder to a sister, the entire legal and equitable estate vests in the sister upon the death of the mother, and a residuary legatee of the sister takes such remainder subject to the transfer tax. Matter of Chabot, 167 N. Y. 280, 60 N. E. 598, affirming 44 App. Div. 340, 60 N". Y. Supp. 927. law inapplicable to remainders and reversions created before Transfer Tax Law. — The right of the State attaches when the right of succession accrues. Remainders and reversions actu- ally created by will before the Transfer Tax Law, although vest- ing in remainder thereafter, are hot taxable. Matter of Seaman, 147 N". Y. 69, 69 St. Eep. 316, reversing 87 Hun, 619: Tal- madge v. Seaman, 85 Hun, 242, 66 St. Eep. 302, 32 N. Y. Supp. 906; Matter of Gibson, 33 App. Div. 628; affirmed without opinion, 157 N. Y. 680; Matter of Langdon, 153 N. Y. 6, 46 1ST. E. 1034, affirming 11 App. Div. 220, 43 N. Y. Supp. 419 ; Matter of Pell, 171 N. Y. 48, 63 N. E. 789, reversing 60 App. Div. 286, 70 1ST. Y. Supp. 196. An interest vesting by virtue of the exercise of a power of appointment created before the Transfer Tax Law was held to relate back to the will of the creator of the power, and was not subject to tax under the will Act of 1896. 141 Future and contingent interests. § 220 of the donee, where the power was exercised after the enactment of Laws 1893, chap. 399, but before Laws 1897, chap. 284. Mat- ter of Harbeck, 161 N. Y. 211, 55 N. E. 850, reversing 43 App. Div. 188, 59 N. Y. Supp. 362. The effect of this decision was superseded by the amendment of section 220, subdivision 5, by Laws 1897, chap. 284, in effect April 16, 1897, declaring that in such case the transfer takes place under the will of the donee of the power. See " Powers of Appointment," p. 145. Laws 1899, chap. 76, in part unconstitutional. — Amend- ment of Laws 1899, chap. 76, attempting to tax remainders and reversions, which had vested prior to June 30, 1885, upon their coming into actual possession or enjoyment, is unconstitutional. Matter of Pell, 171 N. Y. 48, 63 N. E. 789, reversing 60 App. Div. 286, 70 N. Y. Supp. 196. Provision for taxing life estate which can be divested not retroactive. — The provision of section 230, that " whenever 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 limitation," is not retroactive and applies only to the life estate, not to the remainder. Testator died June 17, 1890. Matter of Sloan, 154 N. Y. 109, 47 N. E. 978, af- firming 19 App. Div. 411, 46 N". Y. Supp. 264. Decisions prior to laws 1899, chap. 76. — Prior to the en- actment of Laws 1899, chap. 76, in effect March 14, 1899, the courts uniformly held, that contingent interests were not to be appraised or subjected to tax until the contingency happens, or defeating contingency has been rendered impossible. Matter of Cager, 111 N. Y. 343, affirming 46 Hun, 657; Matter of Stew- art, 131 1ST. Y. 274, 43 St. Rep. 171, reversing in part, 61 Hun, 544, 41 St. Eep. 144, 16 N. Y. Supp. 388 ; Matter of Curtis, 142 1ST. Y. 219, 58 St. Eep. 348, affirming 73 Hun, 185, 56 St. Eep. 113, 25 N". Y. Supp. 909 ; Matter of Hoffman, 143 N". Y. 327, affirming on this point, 76 Hun, 399; Matter of Babcock, 37 Misc. 445, 75 K Y. Supp. 926. See also other cases cited under Act of 1892, at p. 61. And even where the value of a vested remainder is affected by a possible contingency, a tax cannot be presently charged upon the remainder. Matter of Roosevelt, 143 N". Y. 120, 62 -St. Eep. 130, 25 L. E. A. 695, affirming 76 Hun, 257, 59 St. Eep. 100, 27 1ST. Y. Supp. 741 ; Matter of Sloan, 154 N. Y. 109, 47 K E. 978, affirming 19 App. Div. 411, 46 N". Y. Supp. 264. Where life estate only is presently taxable. — Testator who left more than $10,000 personalty provided by will that the resi- due of his property should pass to his surviving sisters, share and ' 142 Act of 1896. § 220 Future and contingent interests. share alike, for their sole and separate use so long as both shall live, the survivor to have the use of the whole amount; upon the decease of both sisters the income to be divided equally among the children of his sister Mary, so long as they shall live, and upon the decease of either or all. of the children of his sister Mary, the principal of the share used for his or her benefit to go to the children of Amy Gay Geer and the children of Wil- lard F. Gay, if he shall have issue, share and share alike, for their sole and separate use forever. Upon an appraisal it ap- peared that the two sisters survived testator, and that both Mary and Amy had children and that William was living, but had never married. Held, that the bequest to the sisters did not constitute a joint tenancy and suspend the power of aliena- tion as to the residuary estate for the lives of both, but it made the sisters tenants in common, with cross-remainders, and that their life estates were taxable; that the remainder was not tax- able until the death of the sisters. Decision before Laws 1899, chap. 76. Matter of Eldridge, 29 Misc. 734. Remaindermen unascertainable. — A remainder is not pres- ently taxable where it is limited to the children of the life ten- ant or her appointees by will, and she is not shown to have any children, as in such case no transfer, defeasible or otherwise, of the remainder has yet been made. The case does not come within the rule in Matter of Vanderbilt, 172 N. Y. 69. Matter of Clarke, 39 Misc. 73, 78 N. Y. Supp. 869. [Decided by one of the surrogates of New Y'ork county and overruled by the later decision of the same surrogate on the same point in Matter of Le Brun, 39 Misc. 516, post, p. 143.] Where property is transferred by will to a beneficiary for life, or until her marriage, with remainder upon her death or mar- riage to remaindermen not ascertainable at the death of the testator, held, notwithstanding section 230, as amended by Laws 1899, ■ chap. 76, no tax was presently assessable upon the re- mainder interests. Matter of Plum, 37 Misc. 466, 75 N. Y. Supp. 940. [This decision was made prior to the decision in Matter of Vanderbilt, 172 N. Y. 69. See p. 143.] Where the person or persons ultimately entitled to a remain- der interest cannot be presently determined, no tax can be pres- ently imposed. Matter of Howell, 34 Misc. 432, 69 N. Y. Supp. 1016. [Decision made prior to decision in Matter of Vanderbilt, 172 N. Y. 69. See p. 143.] Act of 189(5. 143 Future and contingent interests. § 220 Section 230, as amended by chapter 76 of the Laws of 1899, does not indicate an intention to repeal or limit section 2,'i'l respecting the appointment of future or conditional interests. It only requires such interests to be appraised " as soon as prac- ticable." Matter of Babcock, 37 Misc. 415, 75 N. Y. Supp. 926. [Decision made prior to decision in Matter of Vanderbilt, 172 N. Y. 69. See post.] Effect of laws 1899, chap. 76 — Contingent interests pres- ently appraisable and taxable. — Since the enactment of chap- ter 76, Laws of 1899, amending section 230, by providing that '"' 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 im- posed upon said transfer at the highest rate which, upon the happening of any of the said contingencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith out of the prop- erty transferred," the former rule that the payment of the tax upon future or contingent estates be deferred until they vest in possession has been changed and the tax is payable forth- with out of the property transferred. The tax is not upon property, but still remains a tax upon succession. Matter of Vanderbilt, 172 N. Y. 69, 64 N. E. 782, modifying 68 App. Div. 27, 74 N. Y. Supp. 450; decision followed in Matter of Brez, 172 N. Y. 609, reversing 69 App. Div. 619. Remainder appointable by life tenant presently taxable since Laws 1899, chap. 76. — Remainders appointable by the life tenant are presently taxable under section 230, as amended by Laws 1899, chap. 76, although the beneficiaries are not pres- ently ascertainable, and notwithstanding section 220, subdivision 5, as amended by Laws 1897, chap. 284. The court said : "When the donee of the power under the will of this decedent shall have exercised her power of appointment, it may become a question whether the payment of the tax, now to be imposed, will or will not relieve the appointed remaindermen of the payment of any new tax. because of the transfer effected by the will of the donee of the power." The decision is based on Matter of Vanderbilt, 172 N. Y. 69, and Matter of Brez, 172 N. Y. 609. Matter of Le Brim, 39 Misc. 516 (New York county). [This decision, however, seems to be overruled by a recent decision, not yet reported, of the Appellate Division, Second 14:4 Act op 1896. § 220 Future and contingent interests. Department, in Matter of Howe, which holds that the provisions of section 230, as amended by Laws 1899, chap. 76, taxing im- mediately all future interests in remainder, does not repeal subdivision 5 of section 220, making the transfer of property take place at the time of the exercise of a power of appoint- ment, and that, therefore, the taxation of a remainder inter- est in which a power of appointment is involved must be sus- pended until such power is exercised, and cannot he presently had under the will creating the power in accordance with such provision of section 230.] Valuation of future or contingent interests. — Where a tes- tator makes a gift for life, coupled with the right to use any portion of the principal, and gives the remainder to the issue of the life beneficiary, the tax on the remainder is to be com- puted as of the testator's death on the then value of the amount unused at the time of the life beneficiary's death, payable at the latter date. Section 230, as amended by Laws 1902, chap. 496, does not justify the appraisal of the remainder at its full undiminished value, for the reason that such statute is not re- troactive, and, if it were retroactive, it would be unconstitu- tional. Matter of Meyer, 83 App. Div. 381, overruling, in ef- fect, Matter of Eosach, 39 Misc. 130. Where a testator, who died in 1889, wills his wife a fixed in- come for life, payable from the residuary estate, with power vested in the trustees to make up the annuity, if necessary, from the prin- cipal, and the trustees necessarily invade the principal for such purpose, the shares of the remaindermen vesting in possession upon the death of the wife eleven years after the death of the testator are to be appraised at their amount as shown in the trustees' accounting, and a computation reached by taking the value of the testator's estate at the time of his death and de- ducting the theoretically probable and not the actual duration of the wife's life estate, is erroneous, although the Act of 1887, chap. 713, required a life estate to be appraised on this theory; Matter of Jones, 28 Misc. 356, cited and disregarded. Matter of Hall, 36 Misc. 618, 73 N. Y. Supp. 1124. Where testator died while section 230, as amended by chapter 284 of the Laws of 1897 was in force, providing that an estate in expectancy shall be appraised at its full value when the per- son entitled thereto comes into possession, without diminution on account of any valuation of the particular estate on which it is limited, although such provision was omitted by amend- ment to said section in 1899, chapter 76, the value of the ex- Act of 1896. 145 Powers of appointment. § 220 pectant estate must be assessed in accordance with the former statute. Matter of Goelet (Surr. Ct.), 78 N. Y. Supp. 47. Valuation of life estate subject to annuities. — In determin- ing the value of a life estate in a principal fund, which is also subject to the payment of two annuities, the present value of the annuities treated as specific legacies should be deducted from the principal fund, and not the actual amount of principal nec- essary to produce the annuities at the rate of 5 per cent, per annum. Matter of Maresi, 74 App. Div. 76, 77 X. Y. Supp. 1132. Valuation of remainder in residue, subject in part to power of appointment. — A testator gave his residuary estate to his executors to pay the income to his widow for life, and upon her death, gave the remainder, less certain specific bequests, to a nephew. By a codicil he gave his widow power to appoint $150,000 out of the remainder to any descendants of his father, and, if she failed to do so, the remainder was to be distributed as if the codicil had not been executed. Held, that in assessing the transfer tax upon the interest of the nephew, the sum over which the widow has power of appointment must be deducted. Matter of Field, 36 Misc. 279, 73 N. Y. Supp. 512. [The testator died November 2, 1900, and, at the time the above decision was rendered, the widow was dead, leaving a will (not then proved) in which she failed to exercise the power of appointment.] POWERS OF APPOINTMENT. law prior to Laws 1897, chap. 284. — Property passing upon the execution of a power of appointment created by will was subject to a transfer tax under the law before the addi- tion of subdivision 5 by the amendment of 1897. Matter of Steivart, 131 N. Y. 274", 43 St. Eep. 171, reversing in part, 61 Hun, 544, 41 St. Eep. 144, 16 N. Y. Supp. 388. As a con- tingent or expectant interest, the transfer could not be taxed until the estate vested in possession or enjoyment and the bene- ficiaries became fixed and actual, Matter of Hoffman, 143 NT. Y. 327. affirming 76 Hun, 399, and reversing 5 Misc. 439, in the same manner as other contingent or expectant interests. The transfer, however, took place upon the death of the creator of the power. The source of title was the will creating the power into which the names of the appointees must be read. Their right of succession vested, not at the time of the execu- tion of the power, but at the time the will creating it took ef- fect. Matter of Harleck, 161 N. Y. 211, 55 N. E. 850, revers- 10 146 Act of 1896. § 220 Powers of appointment. ing 43 App. Div. 188, 59 N. Y. Supp. 362; Matter of Chaboi, 167 N. Y. 280, 60 N. E. 598, affirming 44 App. Div. 340, 60 N. Y. Supp. 927. It was accordingly held that a bequest made in the exercise of a power by a will, executed after Laws 1892, chap. 399, but created by will which took effect before the enact- ment of any taxable transfer law, was not subject to tax. Matter of Harbeck, supra. This was consistent with the hold- ing as to other future or expectant estates, it having been held in Matter of Langdon, 153 N. Y. 6, 46 N. B. 1034, affirming 11 App. Div. 220, 43 N. Y. Supp. 419, that remainders created by will prior to legislation taxing transfers by will were not subject to tax, although not vesting in possession until after the enactment of Laws 1892, chap. 399. See also Matter of Seaman, 147 N. Y. 69, 69 St. Rep. 316, reversing 87 Hun, 619. Subdivision 5 constitutional — Ketroactive effect — Act of 1885 did not establish contract relation. — Subdivision 5 of section 220, added by Laws 1897 chap. 284, taxing property transferred under a power of appointment, is constitutional; and property so transferred, subsequent to the enactment of the statute, is subject to a transfer tax as of the date of transfer, although at the time of the creation of the power there was no law in force taxing such transfers. The execution of the power does not relate back to the will of the testator creating it so as to make every interest affected by its exercise subject to the law in force at the time of the death of such testator, but the " act constituting the transfer is declared to be the exercise of the power of appointment." No contract relation was established by the Act of 1885. The power of the State of New York to impose a tax upon the ultimate right of succession to the prin- cipal of the trust fund, to fix the time at which the right of succession shall be taxed and to define what shall constitute a transfer within the meaning of that act, so long as that defini- tion does not involve a violation of either vested or contract rights, continued until the time at which the extent of that right was finally fixed by the exercise of the power of appoint- ment; Matter of Harbeck, 161 N. Y. 211, decided before the amendment of 1897, distinguished. Matter of Vanderbilt, 50 App. Div. 246, 63 N. Y. Supp. 1079; affirmed on opinion be- low, 163 N. Y. 579 ; followed in Matter of Vanderbilt, 58 App. Div. 619 ; affirmed, 166 N. Y. 640, without opinion ; and Mat- ter of Potter, 51 App. Div. 512. While it is true to a certain extent that the title of a grantee under a power of appointment is derived from the will of the creator of the power, " it cannot be denied that in reality and Act of 1896. 147 Powers of appointment. § 220 substance it is the execution of the power that gives to the grantee the property passing under it." Matter of Dows, 167 X. Y. 227, 60 N. E. 439, affirming 60 App. Div. 630. Subdivision 5 inapplicable where power was created by deed delivered before Transfer Tax Law. — Laws 1896, chap. 908, § 220, as amended by Laws 1897, chap. 284, 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 pro- visions of this act in the same manner as though the property to which such appointment relates belonged absolutely to the donee of the power," does not apply to property transferred by will un- der a power of appointment created by deed before a Transfer Tax Law was enacted. The decision is based upon the theory that such a tax is a tax on property and not on the succession, there being such a fundamental distinction between a power of appointment created by deed and one created by will as re- gards the right of the legislature to impose a transfer tax, that, in the former ease, the rights of the grantee of the power vested when the deed was executed. Matter of Vanderbilt, 50 App. Div. 246; affirmed, 163 N. Y. 597, is distinguished on the grounds, first, that the power of appointment in that case was created by will %nd not by deed, and second, that such will was made and went into effect subsequent to the enactment of the Act of 1885. Matter of Delano, 82 App. Div. 147. Tax is on succession as in other cases. — The tax imposed by Laws 1896, chap. 908, as amended by Laws 1897, chap. 284, upon transfers made under power of appointment, is a tax upon the right of succession and not upon property, and does not relieve from taxation trust funds as to which a power of ap- pointment is exercised, because invested in corporations liable to taxation on their own capital, and in bonds exempt from taxation. Matter of Dows, 167 N. Y. 227, 60 N. E. 439, affirm- ing 60 App. Div. 630. What constitutes exercise of power.— When a will purports to dispose of all the testator's property, it operates as an execu- tion of a power of appointment, unless the intent that it shall not so operate appears expressly or by implication. Lock-wood v. Mildeoerger, 159 N. Y. 181. Taxability of transfer on failure to exercise power.— Where real property is conveyed to trustees with power to sell or mort- gage and providing that at the death of the grantor it should 148 Act of 1896. § 220 Powers of appointment. be held in trust for her daughters, each daughter being given power to appoint her share among her lawful issue, and failing to do so, her share to belong to such of her issue as shall survive her, held, on the death of a daughter leaving issue and not hav- ing exercised her power of appointment, that the transfer of the share of the deceased daughter, which had been converted into personalty, and over which she had failed to exercise such power, was subject to tax, under Laws 1896, chap. 908, § 220, subd. 5, as amended by chapter 284, Laws 1897, although as real estate it would not have been taxable. Matter of Bartow, 30 Misc. 27. Relationship between donee and beneficiary determines rate of tax. — Under subdivision 5 of section 220 of chapter 908, Laws 1896, as amended by chapter 284 of the Laws of 1897, where the taxability of the property or the rate of tax is dependent upon relationship, the relationship between the donee of the power and the beneficiary is the test, and not that between the bene- ficiary and the creator of the power. Matter of Seaver, 63 App. Div. 283, 71 N. Y. Supp. 544; Matter of Walworth, 66 App. Div. 171, 72 N. Y. Supp. 984; Matter of Rogers, 71 App. Div. 461, 75 N. Y. Supp. 835; affirmed on opinion below, 172 N. Y. 617. Condition of property at exercise of power determines taxa- bility. — Where property is transferred under pewer of appoint- ment, the condition of the property at the time of the exercise of the power, and not at the time of the creation of the power, determines its taxability. So held where real estate was con- verted into personalty by the trustees under power of sale in the will. Matter of Bows, 167 N. Y. 227, 60 1ST. E. 439, affirm- ing 60 App. Div. 630 ; Matter of Bartow, 30 Misc. 27. Remainders created by exercise of power when taxable. — Eemainders created in a trust fund by the exercise of a power of appointment by the beneficiary under the will creating the trust are subject to taxation at the time of the transfer under such act where they are absolute and not subject to be divested or to fail in any contingency whatever, and their present value is determinable by aid of the table of annuities, and they do not come within the exception of section 222, providing that an interest limited, conditioned, dependent, or determinable upon the happening of a contingency or future event, by reason of which the fair market value cannot be ascertained at the time of the transfer, shall be taxable when the person beneficially en- titled thereto shall come into actual possession or enjoyment Act of 1896. 149 Powers of appointment. § 220 thereof. Matter of Bows, 167 N. Y. 227, 52 L. E. A. 433, 60 N. B. 439, affirming 60 App. Div. 630. Remainder, in which a power of appointment is involved; when taxable. — Section 220, subdivision 5, relating to the ex- ercise of a power of appointment, is not repealed by that pro- vision of section 230, as amended by Laws 1899, chap. 76, which provides for the immediate taxation of future and con- tingent interests ; and that, therefore, the taxation of a remainder interest in which a power of appointment is involved must be suspended until such power is exercised. Matter of Howe, App. Div. , Second Department; not yet reported. Payment of debt in exercise of power taxable. — A provision in the will of a donee of a power of appointment directing her executors to repay a loan theretofore made to her out of the property, in respect to which the power of appointment was given, constitutes, when accepted by the creditor, a taxable trans- fer; Matter of Westurn, 152 N. Y. 93, and Matter of Gould, 156 N. Y. 423, followed. Matter of Rogers, 71 App. Div. 461, 75 N. Y. Supp. 835 ; affirmed on opinion below, 172 N. Y. 617. Reappraisal of remainders appraised under former law. — Under section 220, subdivision 5, as amended by Laws 1897, chap. 284, the tax on a transfer made under a power given to a life tenant to appoint the remainder therein, must be as- sessed at the death of the life tenant on the present value of all the property passing under the power, and not merely upon the value of the remainder as appraised under the former law, but not taxed, at the death of the grantor of the power. Matter of Tucker, 27 Misc. 616, 59 N". Y. Supp. 699. Surrogate having jurisdiction. — When property is transferred under a power of appointment the surrogate of the county in which the donee of the power resided at the time of death and in which her will was admitted to probate has jurisdiction, un- der section 229 of the Tax Law, to determine whether the trans- fer is taxable. Matter of Seaver, 63 App. Div. 283, 71 N\ Y. Supp. 544. Conflict in the law. — An apparent conflict exists between section 220, subdivision 5, as amended by Laws 1897, chap. 284, providing for the taxation of interests passing under the exer- cise of a power of appointment, and section 230, as amended by Laws 1899, -chap. 76, requiring the immediate appraisal of future and contingent interests, and the payment of the tax, upon the death of the original testator. Thus in Matter of Bows, 167 N. Y. 227, the court holds that remainders created in a trust fund by the exercise of a power of appointment are im- 150 Act of 1896. § 220 Exemption of corporations. mediately taxable under the will creating the trust, while in Mat- ter of Le Brum, 39 Misc. 516, the surrogate of New York county holds that remainders appointable by the life tenant are presently taxable under section 230, as amended by Laws 1899, chap. 76, at the date of the creation of the power, although the beneficiaries are not presently ascertainable, and notwithstanding section 220, subdivision 5, as amended by Laws 1897, chap. 284. No ex- ception is made in the law or by the decision in Matter of Van- derbilt, 172 N. Y. 69, as to the immediate appraisal and taxation of future interests. The result is, that under one section and one line of authorities, remainders appointable by a life tenant are appraisable and taxable upon the creation of the power, and under another line of authorities, they are appraisable and tax- able upon the exercise of the power. The court in the Le Brun ease appreciated this conflict, saying : " When the donee of the power under the will of the decedent shall have exercised her power of appointment, it may become a question whether the pay- ment of the tax, now to be imposed, will or will not relieve the appointed remaindermen of the payment of any new tax, because of the transfer effected by the will of the donee of the power." Matter of Le Brun, however, seems to be overruled by Matter of Howe (Appellate Division, Second Department, not yet re- ported), which holds that subdivision 5 of section 220 is not, repealed by section 230, as amended by Laws 1899," chap. 76, but is still in force. See Matter of Howe, supra, p. 149. THE EXEMPTION OF CORPORATIONS AND INSTITU- TIONS. The Transfer Tax Act of 1892 (§ 1) imposed a transfer tax upon transfers to persons or corporations " not exempted by law from taxation on real or personal property." The effect of the section was to exempt from the operation of the statute a non- business corporation enumerated in Laws 1890, chap. 553, amend- ing Laws 1889, chap. 191, in effect June 7, 1890, provided such corporation did not derive a profit from its capital or otherwise, or have the right to make dividends or distribute profits among its members. Moreover, Laws 1890, chap. 553, expressly exempted such corporations from the Collateral Inheritance Tax Act. The exemption in section 1 of the Act of 1892 also exempted the non- business corporations enumerated in Laws 1893, chap. 498. Section 220 of the Act of 1896 continued the language of section 1 of the Act of 1892, and Laws 1890, chap. 553, and Laws 1893, chap. 498, were substantially re-enacted in section 4, subdivision Act of 1896. 151 Exemption of corporations. § 220 7 of the Tax Law of 1896, of which the Transfer Tax Law was made article 10. The result was to continue as to such corpora- tions the exemption theretofore enjoyed. The language of section 220 was held to apply to corporations enumerated in sec- tion 4 of the Tax Law in Matter of Thrall, 157 N. Y. 46, 51 N. E. 411, reversing in part, 30 App. Div. 271, 51 N. Y. Supp. 395, it being held in this case that a bequest to a municipal corpora- tion was exempt from the tax for the reason that it was a corpora- tion exempt from taxation under said section 4. The exemptions granted to corporations and institutions by said section 4 con- tinued in force until the enactment of Laws 1900, chap. 382, adding section 243 to the Tax Law, in effect April 11, 1900. This section provided that " the exemptions enumerated in sec- tion 4 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 10 hereof." It was held in Matter of Howell, 34 Misc. 40, 69 K. Y. Supp. 505, that notwithstanding section 243, if a corporation was exempt by special charter, it was not affected by the section but continued to be exempt from the Transfer Tax Law. But it was held in Matter of Hunting- ton, 168 N. Y. 399, 61 N. E. 643, modifying 62 App. Div. 96, 70 N. Y. Supp. 853, that section 4 of the Act of 1896 embodied the whole field of statutory exemption extended to corporations and institutions, and operated to repeal any special exemptions not included in the act, and that by the enactment of section 243 the legislature had deprived such corporations of exemption under the Taxable Transfers Law whether general exemption from taxation was claimed under section 4 or under special acts. Said section 243, however, did not affect the exemptions granted to religious corporations by section 221 of said article 10. Exemptions prior to section 243. — A legacy to a hospital enumerated under chapter 319 of Laws 1848 is exempt from transfer tax. Matter of Kimberly, 27 App. Div. 470, 50 N. Y. Supp. 586. A gift to trustees of a residuary estate for the founding of " a home for the aged," to remain in the hands of the trustees until the termination of two lives in being, may be considered a gift for charitable purposes under Laws 1893, chap. 701, and as if it were in the possession of an association already organized for charitable purposes, and is, therefore, exempt from general tax- ation under Laws 1896, chap. 908, § 4, subd. 7, and, therefore, also exempt from a transfer tax. Matter of Graves, 171 N. Y. 40, 63 3ST. E. 787, reversing 66 App. Div. 267, 72 1ST. Y. Supp. 815. 152 Act of 1896. § 221 Exceptions and limitations. Decisions subsequent to section 243. — The Brooklyn Eastern Hospital, claiming general exemption under section 4, subdivi- sion 7, is not exempt. Matter of Howell, 34 Misc. 40, 69 N. Y. Supp. 505. The Brooklyn Y. M. C. A. is not a religious corporation, and is not exempt. Matter of Fay, 37 Misc. 532, 76 N. Y. Supp. 62. A corporation organized exclusively for educational purposes is no longer exempt. Matter of Crouse, 34 Misc. 670, 70 N. Y. Supp. 731. Missionary societies and Christian associations are not religious corporations, and are not exempt. Matter of Watson, 171 N. Y. 256, 63 N. E. 1109, reversing 70 App. Div. 623, which affirmed 36 Misc. 504, 73 N. Y. Supp. 1058. The amendment of 1901. — Laws 1901, chap. 458, in effect April 22, 1901, amending section 221, provides that bible or tract corporations shall be considered religious corporations and exempt, and also that bequests of personal property other than money or securities to certain nonbusiness corporations shall be exempt from the operation of the act. See p. 154. § 221. Exceptions and limitations — When the prop- erty or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a daughter, or any child or children adopted as such in conformity with the laws of this state, of the decedent, grantor, donor or vendor or to any person to whom any such decedent, grantor, donor or vendor for not less than ten years prior to such transfer stood in the mutually acknowledged re- lation of a parent, or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wedlock, such transfer of property shall not be tax able under this act, unless it is personal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such prop- Act of 1896. 153 Exceptions and limitations. §221 erty. But any property heretofore or hereafter de- vised or bequeathed to any person who is a bishop or to any religious corporation shall be exempted from and not subject to the provisions of this act. Revised from L. 1892, chap. 399, § 2, which was revised from L. 1885, chap. 483, § 1, as amended by L. 1887, chap. 713, L. 1891, chap. 215, and L. 1892, chap. 169, in effect from June 15, 1896, to March 21, 1898, when the section was amended by L. 1898, chap. 88. No change of substance was made in the language of L. 1892, chap. 399, § 2. Amendment, L. 1698, ch. 88. § 221. Exceptions and limitations — When the prop- erty or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a daughter, or any child or chil- dren adopted as such in conformity with the laws of this state, of the decedent, grantor, donor or vendor, or to any child, to whom any such decedent, grantor, donor or vendor for not less than ten years prior to such transfer stood in the mutually acknowledged rela- tion of a parent, provided, however, such relationship began at or before the child's fifteenth birthday and was continuous for said ten years thereafter, or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wedlock, such transfer of prop- erty shall not be taxable under this act, unless it is per- sonal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property. But any property heretofore or hereafter devised or bequeathed to any person who 15-4 Act of 1896. § 221 Exceptions and limitations. is a bishop or to any religious corporation shall be exempted from and not subject to the provisions of this act. [As amended by L. 1898, chap. 88, in effect March 21, 1898.] Scope of amendment. — The amendment of 1898, chap. 88, added' the matter in italics, requiring, in the case of a mutually acknowledged relationship of parent and child, that it shall begin before the child's fifteenth birthday and be continuous for ten years thereafter. The amendment thus supersedes the de- cision in Matter of Beach, 154 N. Y. 252, reversing 19 App. Div. 630, 46 N. Y. Supp. 354, that the fact that a person was an adult at the inception of the relationship does not exclude him from the exemption. See "Adopted Children," etc., p. 158. Amendment, L. iqoi, ch. 45S. § 221. Exceptions and limitations When the prop- erty or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a daughter, or any child or children adopted as such in conformity with the laws of this state, of the decedent, grantor, donor or vendor, or to any child, to whom any such decedent, grantor, donor or vendor for not less than ten years prior to such transfer stood in the mutually acknowledged rela- tion of a parent, provided, however, such relationship began at or before the child's fifteenth birthday and was continuous for said ten years thereafter, or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wedlock, such transfer of prop- erty shall not be taxable under this act, unless it is per- sonal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property. But any property heretofore Act of 1896. 155 Exceptions and limitations. § 221 or hereafter devised or bequeathed to any person who is a bishop or to any religious corporation including corporations organized exclusively for bible or tract purposes shall be exempted from and not subject to the provisions of this act. There shall also be exempted from and not subject to the provisions of this act per- sonal property other than money or securities be- queathed to a corporation or association organized ex- clusively for the moral or mental improvement of men or women or for charitable, benevolent, missionary, hospital, infirmary, educational, scientific, literary, library, patriotic, cemetery or historical purposes or for the enforcement of laws relating to children or ani- mals or for two or more of such purposes and used ex- clusively for carrying out one or more of such pur- poses. But no such corporation or association shall be entitled to such exemption if any officer, member, or employe thereof shall receive or may be lawfully en- titled to receive any pecuniary profit from the opera- tions thereof except reasonable compensation for ser- vices in effecting one or more of such purposes or as proper beneficiaries of its strictly charitable purposes; or if the organization thereof for any such avowed pur- pose be a guise or pretense for directly or indirectly making any other pecuniary profit for such corpora- tion or association or for any of its members or em- ployes or if it be not in good faith organized or con- ducted exclusively for one or more of such purposes. [Thus amended by L. 1901, chap. 458, in effect April 22, 1901. J Scope of amendment. — Added words in italics. See " Ex- emption of Corporations and Institutions," p. 150. 156 Act of 1896. § 221 Exceptions and limitations. Amendment, L. 1903, ch. 41. § 221. Exceptions and limitations. — When property real or personal or any beneficial interest therein, of the value of less than ten thousand dollars, passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a daughter, or any child or chil- dren adopted as such in conformity with the laws of this state, of the decedent, grantor, donor or vendor, or to any child, to whom any such decedent, grantor, donor or vendor for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent, provided, however, such relationship be- gan at or before the child's fifteenth birthday and was continuous for said ten years thereafter, or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wedlock, such transfer of prop- erty shall not be taxable under this act ; if real or per- sonal property, or any beneficial interest therein, so transferred is of the value of ten thousand dollars or, more, it shall be taxable under this act at the rate of one per centum upon the clear market value of such property. But any property heretofore or hereafter devised or bequeathed to any person who is a bishop or to any religious corporation including corporations organized exclusively for bible or tract purposes shall be exempted from and not subject to the provisions of this act. There shall also be exempted from and not subject to the provisions of this act personal prop- erty other than money or securities bequeathed to a corporation or association organized exclusively for the moral or mental improvement of men or women or Act of 1896. 157 Exceptions and limitations. § 221 for charitable, benevolent, missionary, hospital, infirm- ary, educational, scientific, literary, library, patriotic, cemetery or historical purposes or for the enforcement of laws relating to children or animals or for two or more of such purposes and used exclusively for carry- ing out one or more of such purposes. But no such corporation or association shall be entitled to such ex- emption if any officer, member, or employe thereof shall receive or may be lawfully entitled to receive any pecuniary profit from the operations thereof ex- cept reasonable compensation- for services in effecting one or more of such purposes or as proper beneficiaries of its strictly charitable purposes; or if the organiza- tion thereof for any such avowed purpose be a guise or pretense for directly or indirectly making 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. [Thus amended by L. 1903, chap. 41, in effect March 16, 1903.] Scope of amendment. — Operates to tax transfers of real prop- erty to lineals, etc., where the estate is $10,000 or more. " Lineal descendants " mean only the direct descendants of the ancestor and not the children of brothers and sisters. Decisions under same language in Act of 1885. Matter of Miller, 45 Hun, 244, 10 St. Eep. 341; Matter of Smith (Surr. Ct.), 5 St. Eep. 380. " Husband of a daughter." — Limitation applies although daughter dies before testator. Decisions under Act of 1885. Matter of McGarvey (Surr. Ct.), 6 Dem. 145, 20 St. Eep. 135; Matter of Woolsey (Surr. Ct.), 6 Dem. 145, 19 Abb. N. C. 232. Includes the surviving husband of a daughter who has died, even though the husband has remarried. Decision under Act of 1892. Matter of Bay, 13 Misc. 480. 158 Act of 1896. § 221 Adopted children; relation of parent and child. ADOPTED CHILDKEN — MUTUALLY ACKNOWLEDGED RELATION OF PARENT AND CHILD. The provision, classing with lineals and other near rela- tives adopted children and persons between whom and the decedent the mutually acknowledged relation of parent and child exists, was enacted by the amendment of 1887, chap. 713, in effect June 25, 1887. It was re-enacted in the Acts of 1892 and 1896, without change of substance. It was amended in 1898, chap. 88, in effect March 21, 1898, by requiring the rela- tion to commence before the child's fifteenth birthday and be continuous for ten years thereafter, superseding to this extent Matter of Beach, 154 N. Y. 242, reversing 19 App. Div. 630, 46 N. Y. Supp. 354, which held that an adult at the inception of the relation was not excluded from the exemption. As originally enacted, the provision did not have a retroactive effect, but was given such effect by Laws 1889, chap. 479, amending section 25 of the Act of 1885, where the tax had not been assessed at the date of the amendment. Matter of Miller, 110 N. Y. 216, 18 St. Eep. 226, affirming 47 Hun, 394; Matter of Cager, 111 N. Y. 343, 19 St. Eep. 497, affirming 46 Hun, 657; Matter of Thompson (Surr. Ct.), 6 Dem. 211, 14 St. Eep. 487; Matter of Ryan (Surr. Ct.), 3 N. Y Supp. 136; Matter of Thomas, 3 Misc. 388, 24 N. Y. Supp. 713 ; Matter of Kemeys, 56 Hun, 117, 29 St. Eep. 916, 9 N. Y. Supp. 182. Relation, how established. — Formal adoption is unnecessary. Matter of Butler, 58 Hun, 400, 34 St. Eep. 189, 12 N. Y Supp. 201 ; affirmed without opinion, 136 N. Y. 649 ; Matter of Spen- cer, 1 Connoly, 208, 21 St. Eep. 145, 4 N". Y. Supp. 395 ; Matter of Stillwell (Surr. Ct.), 34 N. Y. Supp. 1123, 69 St. Eep. 381. The relation may be established by prima facie evidence, and, if undisputed, it is sufficient. Held established in this case. Matter of Lane, 39 Misc. 522. Adoption under laws of another State is sufficient to establish the relation of parent and child. Matter of Butler, supra. Appraiser must take evidence of relation, where exemption from a transfer of property is claimed on that ground ; otherwise report same as taxable. Matter of Fisch, 34 Misc. 146, 69 N. Y. Supp. 493. Testimony — Effect of Code, § 829. — A legatee may testify at the hearing before the appraiser as to " confidential communica- tions and acknowledged relations growing out of an agreement between " him and decedent for the purpose of showing the rela- Act of 1896. 159 Relation of parent and child. § 221 tion. Section 829 of the Code does not apply. Matter of Brun- dage, 31 App. Div. 348, 52 N. Y. Supp. 362. Provision noc limited to illegitimates. — It extends as well to persons not of the blood of the testator between whom the rela- tion of parent and child has been mutually recognized for the statutory period. Matter of Beach, 154 N. Y. 242, reversing 19 App. Div. 630, 46 N. Y. Supp. 354, also reversing in effect Matter of Hunt, 86 Hun, 232, 66 St. Eep. 812, 33 N. Y. Supp. 256, and following Matter of Butler, 58 Hun, 400, 12 N. Y. Supp. 201, 34 St. Eep. 189, and Matter of Nichols, 91 Hun. 134, 36 N. Y. Supp. 538, 71 St. Rep. 634. Adults included before March 21, 1898. — The fact that a person was an adult at the inception of the relation does not ex- clude him from the provision. Matter of Beach, supra. But this decision was superseded by Laws 1898, chap. 88, in effect March 21, 1898, amending section 221 by requiring the relation to com- mence before the child's fifteenth birthday. Children of adopted children not included. — Matter of Bird (Surr. Ct), 11 K Y. Supp. 895, 32 St. Eep. 899; Matter of Moore, 90 Hun, 162, 70 St. Eep. 286 ; Matter of Fisch, 34 Misc. 146, 69 N". Y. Supp. 493. Illustrative decisions under Act of 1892. — The relation of parent and child between an uncle and his nieces held not estab- lished, although they lived together, in the same family. Matter of Moulton, 11 Misc. 694, 67 St. Eep. 400, 33 K Y. Supp. 578. Nieces having independent estates lived with a childless aunt for thirteen years. She was also their guardian and charged them unusually high rates for board. Held, that the mutually acknowledged relation did not exist, although she often addressed them as " my dear girls." Matter of Birdsall, 22 Misc. 180, 49 N. Y. Supp. 450 ; affirmed without opinion, 43 App. Div.. 624. Where a child of six years of age was taken into testator's family and resided with him continuously for fifty years and was treated by him generally in the same manner as his daugh- ters, an annuity to her was held exempt, although he referred to her in his will as " friend," and not as daughter. Matter of Wheeler, 1 Misc. 450, 51 St. Eep. 513, 22 N". Y. Supp. 1075. See also decisions under Act of 1887, as follows: Matter of Spencer (Surr. Ct.), 4 K Y. Supp. 395, 21 St. Eep. 145, 1 Connoly, 208; Matter of Capron (Surr. Ct.), 10 N". Y. Supp. 23, 30 St. Eep. 948; Matter of Sweetland (Surr. Ct.), 20 N. Y. Supp. 310, 1 Pow. Surr. Eep. 200, 47 St. Eep. 287, all of which are digested at pp. 20, 21. 160 Act of 1896. §221 Exemption of religious corporations. EXEMPTION OF RELIGIOUS CORPORATIONS AND BISHOPS. This exemption was made by Laws 1892, chap. 169, amending section 1 of the Act of 1887, in effect March 19, 1892, and was continued in the Acts of 1892 and 1896, without change. Retroactive. — The exemption was retroactive and any property so passing to a religious corporation or bishop is relieved from the tax whether such devise or bequest had become operative prior to the passage of the act or subsequent. Roman Catholic Church of The Transfiguration v. Niles, 86 Hun, 221, 66 St. Rep. 759, 33 1ST. Y. Supp. 253. In the above case the testator died October 10, 1885. Applies only to domestic religious corporations. — Matter of Smith, 77 Hun, 134, 28 N. Y. Supp. 476 ; Matter of Taylor, 80 Hun, 589, 30 N. Y. Supp. 582, affirming 6 Misc. 277; Matter of Battels, 144 N. Y. 132, 68 St. Rep. 27, affirming 78 Hun, 275, 60 St. Rep. 792. Corporations exempt. — The Protestant Episcopal Church Mis- sionary Society for Seamen in the city and port of New York is a religious corporation and exempt. Matter of Pratt, 78 App. Div. 301, 79 N. Y. Supp. 971. Corporations not exempt. — The Brooklyn Y. M. C. A. Mat- ter of Fay, 37 Misc. 532, 76 N". Y. Supp. 62. Missionary socie- ties and Christian associations are not religious corporations within the meaning of this section. Matter of Watson, 171 N. Y. 256, 63 N. E. 1109, reversing 70 App. Div. 623, which affirmed 36 Misc. 504, 73 N. Y. Supp. 1058. Bishop, resident or nonresident, exempt. — Matter of Palmer, 33 App. Div. 307, 53 N". Y. Supp. 847 ; affirmed on opinion be- low, 158 N. Y. 669. Archbishop or cardinal bishop included in exemption. Mat- ter of Kelly, 29 Misc. 169. Bequest to bishop "or his living successor." — A bequest "to Bishop Wm. Taylor or his living successor," is in the event of his death a gift to " his living successor personally," and not to a corporation sole, and is exempt. Matter of Palmer, supra. Amendments, L. 1897, ch. 284; L. 1901, ch. 173. § 222. Lien of taxes and payment thereof Every such tax shall be and remain a lien upon the property trans- ferred until paid and the person to whom the property Act of 1896. 161 Lien of tax and payment thereof. § 222 is so transferred, and the administrators, executors and trustees of every estate so transferred shall be personally liable for such tax until its payment. The tax shall be paid to the treasurer in a county in which the office of the appraiser is not salaried, and in other counties, to the state comptroller and said treasurer or state comptroller shall give, and every executor, administrator or trustee shall take, duplicate receipts from him of such payment. If such duplicate receipts were received from a county treasurer such executor, administrator or trustee shall immediately send one of them to the state comptroller, and if received from the state comptroller he shall immediately send one of them to the state treasurer. The state comptroller or the state treasurer, as the case may be, receiving such receipt shall charge the officer receiving the tax "with the amount thereof and seal said receipt with the seal of his office and countersign the same and return it to the executor, administrator or trustee, whereupon it shall be a proper voucher in the settlement of his accounts; but no executor, administrator or trustee shall be entitled to a final accounting of an estate in settlement of which a tax is due under the provisions of this act unless he shall produce a receipt so sealed and countersigned, or a certified copy thereof, or un- less a bond shall have been filed as prescribed by sec- tion two hundred and twenty-six of this chapter. All taxes imposed by this article shall be due and payable at the time of the transfer, except as hereinafter pro- vided. Taxes upon the transfer of any estate, prop- erty or interest therein limited, conditioned, dependent or determinable upon the happening of any contin- 11 162 Act of 1896. § 222 Lien of tax; statute of limitations. gency or future event by reason of which, the fair mar- ket value thereof cannot be ascertained at the time of the transfer as herein provided, shall accrue and be- come due and payable when the persons or corpora- tions beneficially entitled thereto shall come into actual possession or enjoyment thereof. All taxes which, at the time the amendment to this section takes effect, have been assessed by an order of the surrogate, or which have accrued, in a county in which the office of appraiser is salaried, shall be paid to the state comp- troller, as provided by this article. [As amended by L. 1897, chap. 284, in effect April 16, 1897, and L. 1901, chap. 173, in effect April 1, 1901.] Revised from L. 1892, chap. 399, § 3, which was revised from L. 1885, chap. 483, §§ 2, 4, 8. No change of substance was made in the language of L. 1892, chap. 399, § 3. Scope of amendments. — The amendment of 1897 merely re- quired receipts to be countersigned by the State comptroller. The amendment of 1901 makes necessary changes, in view of the power centered in the State comptroller to appoint and remove salaried appraisers in some of the counties and provides for ap- praisals by county treasurers in other counties. lien of tax. — The transfer tax remains a lien upon real estate until the same has been paid. Decisions under Act of 1892. Kitching v. Shear, 26 Misc. 436; Frank v. Tanhauser et al., N. Y. L. J., November 17, 1900. limitation of time. — Section 282 of the Tax Law, added by Laws 1899, chap. 737, provides that except as to real estate in the hands of bona fide purchasers, the six years' limitation of time for enforcing a civil remedy shall not apply to the collection of the transfer tax, and. that " this act shall be construed as hav- ing been in effect as of the date of the original enactment of the * * * Inheritance Tax Law." It was held in Matter of Crerar, 31 Misc. 481, that neither the two nor the six-year stat- utory limitation is a defense to a proceeding to collect the trans- fer tax. This case was reversed by the Appellate Division, 56 App. Div. 479, without considering the question of limitation. Act of 1896. 163 Discount, interest and penalty. § 223 Since the enactment of Laws 1899, chap. 737, it has been decided in Matter of Moench, 39 Misc. 480, that, assuming the trans- fer tax is a liability created by statute and within the six-year limitation under the Code of Civil Procedure, § 382, subd. 2, the section has been repealed as to proceedings to collect the tax by Laws 1899, chap. 737, and is untenable as a defense; it is further held that said chapter 737, treated as a retroactive statute, is valid. Future and contingent interests — Payment of tax thereon. — The provisions of this section for the accrual and payment of a transfer tax on future and contingent interests when they vest in actual possession or enjoyment seem to be superseded by the provisions of section 230, as amended by Laws 1899, chap. 76, in effect March 14, 1899, providing that taxes upon future or contingent interests shall accrue at the date of death and be paid from the principal of the estate. So held in Matter of Robinson (N". Y. L. J., Aug. 5, 1903), notwithstanding the apparent restoration of the former provision by Laws 1901, chap. 173. See Matter of Yan&erbilt, 172 N. Y. 69, 64 N. E. 782, modifying 68 App. Div. 27, 74 1ST. Y. Supp. 450. See also full discussion of this subject under head "Future and Contingent Interests, p. 137. For decisions prior to the Act of 1899, holding the tax not payable until property vests in possession or enjoyment, see " Future and Contingent Interests," p. 137. Credit on accounting may be refused unless executor produce transfer tax voucher. Decision under Act of 1885. Matter of Jones (Surr. Ct.), 5 Dem. 30, 19 Abb. N. C. 221. § 223. Discount, interest and penalty — If such tax is paid within six months from the accruing thereof, a discount of five per centum shall be allowed and deducted therefrom. If such tax is not paid within eighteen months from the accruing thereof, interest 'shall be charged and collected thereon at the rate of ten per centum per annum from the time the tax ac- crued; unless by reasons of claims made upon the es- tate, necessary litigation or other unavoidable cause of delay, such tax can not be determined and paid as herein provided, in which case interest at the rate of 164 Act of 1896. § 223 Discount, interest and penalty. six per centum per annum shall be charged upon such tax from the accrual thereof until the cause of such delay is removed, after which ten per centum shall be charged. In all cases when a bond shall be given under the provisions of section two hundred and twenty-six of this chapter, interest shall be charged at the rate of six per centum from the accrual of the tax until the date of payment thereof. Revised from L. 1892, chap. 399, § 4, which was revised from L. 1885, chap. 483, §§ 4 and 5, as amended by L. 1887, chap. 713, in effect June 15, 1896. No change of substance was made in the language of L. 1892, chap. 399, § 4. Relief from penalty. — Appraiser cannot remit penalty. Spe- cial application must be made to the surrogate. Matter of De Graff, 24 Misc. 147, 53 N. Y. Supp. 591. The penalty should be remitted for so much of the delay as has been caused by the fact that the fund was in litigation. Matter of Bolton, 35 Misc. 688, 72 N. Y. Supp. 430. Relief from penalty will not be granted where the only reasons assigned are .that the executors are ignorant of the law, and that such payment will be a hardship to the legatee. Matter of Piatt, 8 Misc. 144, 59 St. Eep. 485, 29 N. Y. Supp. 396. Application for remission of penalty denied. — Matter of Wm-mser, 51 App. Div. 441, modifying 28 Misc. 608, 59 N. Y. Supp. 1088. See also Matter of Moore, 90 Hun, 162, 70 St. Eep. 286, 35 N. Y. Supp. 782, in which interest and not penalty was charged under Act of 1887. When interest begins to run. — Interest upon the tax begins to run when the tax accrues. Except in the cases of .contingent or future interests, where such interests are not presently taxable, interest runs from the date of death. Matter of Davis, 149 N. Y. 539. Payment of interest, where death occurred before the Act of 1892. — The right to pay interest, where penalty has been ex- cused, only after expiration of eighteen months after death of testator is an accrued right in such case. Matter of Fayer- weather, 143 N>. Y. 114, 38 N. E. 278, 62 St. Eep. 127. Interest on tax on contingent remainder. — Interest can be charged upon a transfer tax upon an estate in remainder only Act of 18*6. 165 Collection of tax by executors. § 224 from the death of the life tenant, where by the terms of the will creating the estate in remainder persons entitled to take in remainder cannot be determined until such time. Decision under Act of 1885. Matter of Davis, 149 N. Y. 539,. 44 N. E. 183, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N. Y. Supp. 822. Interest or penalty under Act of 1885. — Under chapter 483, Laws 1885, as amended by chapter 513, Laws 1887, interest or penalty attaches only from and after eighteen months after the death of the decedent. Matter of Milne, 76 Hun, 328, 59 St. Eep. 100, 27 N. Y. 727. Amendment, L. iooi, ch. 173. § 224. Collection of tax by executors, administrators and trustees — Every executor, administrator or trustee, shall have full power to sell so much of the property of the decedent as will enable him to pay such tax in the same manner as he might be entitled by law to do for the payment of the debts of the testator or intestate. Any such administrator, executor or trustee having in charge or in trust any legacy or property for distribu- tion subject to such tax shall deduct the tax therefrom ; and within thirty days therefrom shall pay over the same to the county treasurer or state comptroller, as herein provided. If such legacy or property be not in money, he shall collect the tax thereon upon the ap- praised value thereof from the person entitled thereto. He shall not deliver or be compelled to deliver any specific legacy or property subject to tax under this article to any person until he shall have collected the tax thereon. If any such legacy shall be charged upon or payable out of real property, the heir or devisee shall deduct such tax therefrom and pay it to the ad- ministrator, executor or trustee, and the tax shall re- main a lien or charge on such real property until paid, and the payment thereof shall be enforced by 166 Act op 1896. § 224 Collection of tax; payment of tax. the executor, administrator or trustee in the same manner that payment of the legacy might he enforced, or by the district attorney under section two hundred and thirty-five of this chapter. If any such legacy shall be given in money to any such person for a lim- ited period, the administrator, executor or trustee shall retain the tax upon the whole amount, but if it be not in money, he shall make application to the court having jurisdiction of an accounting by him, to make an apportionment, if the case require it, of the sum to be paid into his hands by such legatees, and for such further order relative thereto as the case may require. [Thus amended by L. 1901, chap. 173, in effect April 1, 1901.] Revised from L. 1893, chap. 399, § 5, which was revised from ' L. 1885, chap. 483, §§ 6, 7, 8, as amended by L. 1887, chap. 713. No change of substance was made in the language of L. 1892, chap. 399, §5. Scope of amendments. — The amendment of 1901 requires the direct payment of taxes to the State comptroller in counties' having salaried appraisers. Payment of tax. — The fact that an estate has been distributed is no excuse for nonpayment of the tax. Matter of Racket, 14 Misc. 282. Where a tax has been imposed and the statute providing for its imposition is in force, it is a duty of the executors of a non- resident decedent to pay the tax or to request the imposition of the tax, as the case may be, before removing the property ; Citing Matter of Embury, 19 App. Div. 214; affirmed, 154 K Y. 746. Matter of Hubbard, 21 Misc. 566. The rule that inheritance taxes on a money legacy may be deducted from the principal by the executors of a will does not apply to a legacy given them in trust for the benefit of one per- son for life, and the remainder to another. Each beneficiary must pay his own tax. Matter of Hoyt, 37 Misc. 720, 76 N. Y. Supp. 504. See Matter of Vanderbilt, 172 1ST. Y. 69. Act of 1896. 167 Refund of tax erroneously paid. § 225 Amendments, L. 1897, ch. 384; L. 1900, ch. 382; L. 1001, ch. 173. § 225. Refund of tax erroneously paid. — If any debts shall be proven against the estate of a decedent after the payment of any legacy or distributive share thereof, from which any such tax has been deducted or upon which it has been paid by the person entitled to such legacy or distributive share, and such person is required by order of the surrogate having jurisdiction on notice to the state comptroller, to refund the amount of such debts or any part thereof, an equitable proportion of the tax shall be repaid to him by the executor, admin- istrator or trustee, if the tax has not been paid to the county treasurer, or state comptroller, or if such tax has been paid to such treasurer or state comptroller, ~he shall refund out of the funds in his hands or cus- tody to the credit of such taxes such equitable propor- tion of the tax, and credit himself with the same in the account required to be rendered by him under this article. If after the payment of any tax in pursuance of an order fixing such tax, made by the surrogate hav- ing jurisdiction, such order be modified or reversed within two years from and after the date of entry of the order fixing the tax, on due notice to the comp- troller of the state, the state comptroller shall, if such tax was paid in a county in which the office of ap- praiser is not salaried, by order, direct and allow the treasurer of the county, to refund, or if paid in any other county, he shall himself refund to the executor, administrator, trustee, person or persons, by whom such tax has been paid, the amount of any moneys paid or deposited on account of such tax in excess of the 168 Act of 1896. § 225 Refund of tax erroneously paid. amount of the tax fixed by the order modified or re- versed, out of the funds in his hands or custody, to the credit of such taxes, and to credit himself with the same in the account required to be rendered by him under this act; but no application for such refund shall be made after one year from such reversal or modifi- cation, and the comptroller of the state shall deduct from the fees allowed by this article to the county treasurer the amount theretofore allowed him upon such overpayment. Where it shall be proved to the satisfaction of the surrogate who has assessed the tax upon the transfer of property under this article that deductions for debts were allowed upon the appraisal, since proved to have been erroneously allowed, it shall be lawful for such surrogate to enter an order assess- ing the tax upon the amount wrongfully or errone- ously deducted. [Thus amended by L. 1897, chap. 284, in effect April 16, 1897 ; L. 1900, chap. 382, in effect April 11, 1900, and L. 1901, chap. 173, in effect April 1, 1901.] Revised from L. 1892, chap. 399, § 6, which was revised from L. 1885, chap. 483, §§ 10, 13, as amended by L. 1887, chap. 713. No change of substance was made in the language of L. 1892,. chap. 399, § 6, except by subsequent amendments. Scope of amendments. — The amendment of 1897 requires notice of application for a modification or reversal of an order fixing tax to be given to the State comptroller. Also provides that debts erroneously allowed upon an appraisal shall be sub- sequently taxed by the surrogate. The amendment of 1900 limits the time within which the surrogate can modify or reverse an order to two years from the date of entry of original order. The amendment of 1901 was rendered necessary by the change in the law requiring payments of tax to be made to the State comp- troller in counties having salaried appraisers. Decisions.— The surrogate has power under Laws 1897, amend- ing Laws 1896, chap. 908, to modify his order and direct a refund Act of 1896. 169 Payment of tax deferred. § 226 of tax imposed on United States government bonds under the Act of 1892, although the time to appeal has expired. The State comptroller may be mandamused to procure the refund. Matter of Coogcm, 27 Misc. 563 ; affirmed without opinion, 45 App. Div. 628, 162 N. Y. 613. It was held under the Acts of 1885 and 1887 that the remedy provided by the Inheritance Tax Law for securing a refund was exclusive. Matter of Howard/ 54 Hun, 305, 27 St. Rep. 8, 7 N. Y. Supp. 594; Matter of Hall (Gen. T.), 7 N. Y. Supp. 595, 27 St. Eep. 133. An application to a surrogate for a refund need not be made within two years from the date of entry of order fixing tax. Section 1290 of the Code does not apply. Decision under Act of 1892. Matter of Sherar, 25 Misc. 138. While the tax remains in the hands of the county treasurer the surrogate may direct a refund. Matter of Park, 8 Misc. 550, 60 St. Eep. 681, 29 N. Y. Supp. 1081. See also notes under section 232, p. 213, in relation to powers of surrogate to modify order. Amendment, L. 1897, ch. 284. § 226. Deferred payment — Any person or corpora- tion beneficially interested in any property charge- able with a tax under this article, and executors, ad- ministrators and trustees thereof may elect within eighteen months from the date of the transfer thereof as herein provided, not to pay such tax until the per- son or persons beneficially interested therein shall come into the actual possession or enjoyment thereof. If it be personal property, the person or persons so electing shall give a bond to the sta4;e in penalty of three times the amount of any such tax, with such sure- ties as the surrogate of the proper county may ap- prove, conditioned for the payment of such tax and interest thereon, at such time or period as the person or persons beneficially interested therein may come into the actual possession or enjoyment of such prop- erty, which bond shall be filed in the office of the sur- 170 Act of 1896. § 227 Taxes upon bequests in lieu of commissions. rogate. Such bond must be executed and filed and a full return of such property upon oath made to the surrogate within one year from the date of transfer thereof as herein provided, and such bond must be re- newed every five years. [As amended by L. 1897, chap. 284, in effect April 16, 1897. J Revised from L. 1892, chap. 399, § 7, which was revised from L. 1885, chap. 483, § 2, in part, as amended by L. 1887, chap. 713. No change of substance was made in the language of L. 1892, chap. 399, § 7, except by the amendment of 1897. Scope of amendment. — Ttie amendment of 1897 merely re- quired executors, etc., to elect within " eighteen months " instead, of " one year." Effect of section since Laws 1899, chap. 76. — Since the en- actment of Laws 1899, chap. 76, in effect March 14, 1899, amending section 230, by requiring the immediate appraisal of future and contingent interests and the payment of the tax within the same time as is required in case of estates vesting in possession or enjoyment at the death of a decedent, this section seems to be obsolete. See pp. Ill, 112. § 227. Taxes upon devises and bequests in lieu of com- missions — If a testator bequeaths or devises property to one or more executors or trustees in lieu of their commissions or allowances, or makes them his legatees to an amount exceeding the commissions or allowances prescribed by law for an executor or trustee, the ex- cess in value of the property so bequeathed or devised, above the amount of commissions or allowances pre- scribed by law in similar cases shall be taxable under this article. Revised from L. 1892, chap. 399, § 8, which was revised from L. 1885, chap. 483, § 3, as amended by L. 1887, chap. 713. No change of substance was made in the language of L. 1892, chap. 399, § 8. Act of 1896. 171 Liability of corporations to ta„ation. § 228 legacies not in lieu of commissions. — Where it appears from the will that legacies given to executors and trustees were not given in lieu of commissions and were in no way dependent upon or affected by the performance of executorial duties on the part of the legatees an exemption from taxation,- to the extent of such legacies, is not created under section 227 of the act, although the will expressly provides that no compensation or corflmission as such shall be paid to any living executor or trustee. Matter of Vanderbilt, 68 App. Div. 27; reversed on another point, 172 K. Y. 69. Amendments, L. iooi, ch. 173; L. 1902, ch. 101. § 228. Liability of certain corporations to tax If a foreign executor, administrator or trustee shall as- sign or transfer any stock or obligations in this state standing in the name of a decedent, or in trust for a decedent, liable to any such tax, the tax shall be paid to the treasurer of the proper county or the state comptroller on the transfer thereof. No safe deposit company, trust company, corporation, bank or other institution, person or persons having in possession or under control securities, deposits, or other assets of a decedent, including the shares of the capital stock of, or other interests in, the safe deposit company, trust company, corporation, bank or other institution making the delivery or transfer herein provided, shall deliver or transfer the same to the executors, administrators or legal representatives of said decedent, or upon their order or request, unless notice of the time and place of such intended delivery or transfer be served upon the state comptroller at least ten days prior to said delivery or transfer; nor shall any such safe deposit company, trust company, corporation, bank or other institution, person or persons deliver or transfer any 172 Act of 1896. § 228 Liability of corporations; penalty. securities, deposits or other assets of the estate of a non-resident decedent including the shares of the capi- tal stock of, or other interests in, the safe deposit company, trust company, corporation, bank or other institution, making the delivery or transfer, without retaining a sufficient portion or amount thereof to pay any tax and penalty which may thereafter be assessed on account of the delivery or transfer of such securi- ties, deposits, or other assets including the shares of the capital stock of or other interests in, the safe de- posit company, trust company, corporation, bank or other institution making the delivery or transfer, under the provisions of this article, unless the state comptroller consents thereto in writing. And it shall be lawful for the said state comptroller, personally, or by representative, to examine said securities, de- posits or assets at the time of such delivery or trans- fer. Failure to serve such notice and to allow such examination, and to retain a sufficient portion or amount to pay such tax and penalty as herein provided, shall render said safe deposit company, trust company, corporation, bank or other institution, person or per- sons liable to the payment of three times the amount of the tax and penalty due or thereafter to become due upon said securities, deposits or other assets, includ- ing the shares of the capital stock of, or other interests in, the safe deposit company, trust company, corpora- tion, bank or other institution, making the delivery or transfer; and the payments as herein provided shall be enforced in an action brought in accordance with the provisions of section two hundred and thirty-five of this chapter. [As amended by L. 1901, chap. 173, in Act of 1896. 173 Jurisdiction of surrogate. § 229 effect April 1, 1901, and L. 1902, chap. 101, in effect March 6, 1902.J Revised from L. 1892, chap. 399, § 9, which was revised from L. 1885, chap. 483, § 11, as amended by L. 1887, chap. 713. Scope of amendments. — The amendments of 1901 and 1902 require notice to the State comptroller before transferring assets, etc., standing in the name of a decedent, and broaden the class of corporations to which the section is applicable. The person or corporation holding property of a decedent must retain suffi- cient thereof to pay the transfer tax and penalty thereon, unless the State comptroller consents to the transfer of the property in writing. Failure in either particular renders such person or cor- poration liable to the payment' of a penalty in three times the amount of the tax and penalty thereon. Administrators are liable for the tax and corporations can transfer stock standing in the name of a nonresident decedent only at their peril until the tax thereon is paid. Decision under the Act of 1887. Matter of Romaine, 127 N. Y. 80, 38 St. Rep. 76, affirming 58 Hun, 109, 33 St. Rep. 784, 11 N. Y. Supp. 313. Amendment, L. iqoi, ch. 173. § 229. Jurisdiction of the surrogate.— The surrogate's court of every county of the state having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent whose property is charge- able with any tax under this article, or to appoint a trustee of such estate or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and determine all questions arising under the provisions of this article, and to do any act in relation thereto authorized by law to be done by a surrogate in other matters or proceedings coming within his juris- diction; and if two or more surrogates' courts shall be entitled to exercise any such jurisdiction, the surrogate first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other surrogate. Every 174 Act of 1896. § 229 Jurisdiction of surrogate. petition for ancillary letters testamentary or ancillary letters of administration made in pursuance of the provisions of article seven, title three, chapter eighteen of the code of civil procedure shall set forth the name of the county treasurer in a county in which the office of appraiser is not salaried, and in the other counties the state comptroller, as a person to be cited as therein prescribed, and a true and correct statement of all the decedent's property in this state and the value thereof; and upon the presentation thereof the surrogate shall issue a citation directed to such county treasurer or state comptroller ; and upon the return of the citation the surrogate shall determine the amount of the tax which may be or become due under the provisions of this article and his decree awarding the letters may contain any provision for the payment of such tax or the giving of security therefor which might be made by such surrogate if the county treasurer or state comptroller were a creditor of the decedent. \_As amended by L. 1901, chap. 173, in effect April 1, 1901. ] Revised from L. 1892, chap. 399, § 10, which was revised from L. 1885, chap. 483, § 15, as amended by L. 1887, chap. 713. Scope of amendment. — The amendment is indicated by italics. Necessitated by salaried appraisers in certain counties and the direct payment of the tax therein to the State comptroller. Powers of surrogate. — The surrogate's court has power to de- cide every question that may arise in a proceeding under the act which may be necessary to fully discharge the duties imposed upon it. Matter of Ullman, 137 N. Y. 403, 33 N. B. 480, 51 St. Rep. 1, reversing 67 Hun, 5, 50 St. Rep. 748, 21 N. Y. Supp. 758. Surrogate is taxing officer. — The surrogate has original and exclusive jurisdiction as assessor and taxing officer in the first instance, and no power can be exercised by the Supreme Court in an equity action either to assess or determine such liability. Act of 1896. 175 Jurisdiction of surrogate. § 229 Weston- v. Goodrich, 86 Hun, 194, 67 St. Eep. 127, 33 N. Y. Supp. 382. Where property is transferred under power of appointment. — Where property is transferred under a power of appointment, the surrogate of the county in which the donee of the power resided at the time of death, and in which her will was admitted to probate, has jurisdiction under section 229 of the Tax Law to determine whether the transfer is taxable. Decision rendered since Laws 1897, chap. 284, amending section 220 by taxing transfers upon the execution of a power of appointment as if the interest passed upon the execution of the power. Matter of Seaver, 63 App. Div. 283, 71 K Y. Supp. 544. Ancillary letters unnecessary. — It is not necessary that an- cillary letters be applied for or issued in order to confer juris- diction upon the surrogate to impose a tax upon the estate of a nonresident decedent. Matter of Fitch, 160 N. Y. 87, 54 N". E. 701, affirming 39 App. Div. 609, 57 N. Y. Supp. 786. Where nonresident owns stock in domestic corporation. — The surrogate of the county in which a domestic corporation operates has jurisdiction to institute proceedings to fix a tax thereon. Matter of Fitch, 26 Misc. 353 ; affirmed on other points, 39 App. Div. 609, 160 N. Y. 87. Shares of stock in a domestic corporation transferred under the will of a nonresident and taxable under the Transfer Tax Act, as " property within the State," are within the meaning of subdivision 3 of section 2476 of the Code of Civil Procedure, " property within that county " where the corporate property is, and hence the Surrogate's Court of that county has by force of section 10 (§ 229 of Act of 1896) of the act, jurisdiction to impose the tax. Matter of Fitch, supra. Where nonresident leaves property "in more than one county. — The surrogate who first issues ancillary letters upon an estate has exclusive jurisdiction to appoint an appraiser. Matter of Hathaway, 27 Misc. 474, 59 N. Y. Supp. 166. Where estate of nonresident has been distributed. — The surrogate of the county in this State in which the nonresident decedent's property was situate at the time of his death, still has jurisdiction to appoint an appraiser and fix the tax. Matter of Fitch, supra. Where re-sidence is denied. — Where it is denied that a dece- dent was a resident, the surrogate has no power, until the question of residence has been determined by him, to require the executor to disclose what stocks of foreign corporations were 176 Act of 1896. § 230 Appointment of appraisers; valuation of estates. owned by decedent at time of death. Matter of Bishop, 82 App. Div. 112, 81 N. Y. Supp. 474. Note. — See also decisions under heading " Modification of Order/' etc., post, p. 213. § 230. Appointment of appraisers. — The surrogate, upon the application of any interested party, including county treasurers, or the comptroller of New York city, or upon his own motion, shall, as often as and whenever occasion may require, appoint a competent person as appraiser, to 'fix the fair market value, at the time of the transfer thereof of property of persons whose estates shall be subject to the payment of any tax imposed by this article. If the property upon the transfer of which a tax is imposed shall be an estate, income or interest for a term of years, or for life, or determinable upon any future or contingent estate, or shall be a remainder or reversion or other expectancy, real or personal, the entire property or fund by which such estate, income or interest is supported, or of which it is a part, shall be appraised immediately after such transfer, or as soon thereafter as may be practicable, at the fair and clear market value thereof at that time; provided, however, that when such estate, income or in- terest shall be of such a nature that its fair and clear market value can not be ascertained at such time, it shall be appraised in like manner at the time when such value first became ascertainable. The value of every future, or contingent or limited estate, income, interest or annuity dependent upon any life or lives in being shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance in ascertaining the value of policies of Act of 1896. 177 Appointment of appraisers. § 230 life insurance and annuities for the determination of liabilities of life insurance companies ; except that the rate of interest for computing the present value of all future and contingent interests or estates shall be five per centum per annum. Whenever an estate for life or for years can be di- vested by the act or omission of the legatee or devi- see, it shall be taxed as if there were no possibility of such limitation. Revised from L. 1892, chap. 399, § 11, which vas revised from L. 1885, chap. 483, in part, as amended by L. 1889, chap. 307, and L. 1892, chap. 167. The last sentence was added. Held not retroactive and appli- cable only to the life estate. Matter of Sloane, 154 N. Y. 109. See p. 138. In force from June 15, 1896, to April 16, 1897, when the section was amended by L. 1897, chap. 284. See " Future and Contingent Interests," and cases thereunder, p. 137. Amendment, L. 1897, ch. 284. * § 230. Appointment of appraisers.— The surrogate, upon the application of any interested party, includ- ing the state comptroller, county treasurers, or the comptroller of New York city, or upon his own motion, shall, as often as, and whenever occasion may require, appoint a competent person as appraiser, to fix the fair market value (at the time of the transfer thereof) of property of persons whose estates shall be subject to the payment of any tax imposed by this article. If the property upon the transfer of which a tax is im- posed shall be an estate, income or interest, or shall be a remainder or reversion or other expectancy, real or personal, the title to which is fixed, absolute and indefeasible, such estate or estates shall be appraised immediately after such transfer, or as soon thereafter 12 178 • Act of 1896. § 230 Valuation of estates. as may be practicable, at tbe fair and clear market value thereof at that time; provided, however, that when' such estate, income or interest shall be of such a nature that its fair and clear market value can not be ascertained at such .time, it shall be appraised in like manner at the time when such value first becomes as- certainable. Estates in expectancy which are con- tingent or defeasible shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estates for purposes of taxation, upon which said estates 'in expectancy may have been limited. The value of every future or limited estate, income, interest or annuity dependent upon any life or lives in being, shall be de- termined by the rule, method and standard of mortality and value employed by the superintendent of insurance in ascertaining the value of policies of life insurance 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 allowance shall be made ■ in respect of any contingent incumbrance thereon, nor in respect of any contingency upon the happening of which the estate or property or some part thereof or interest therein might be abridged, defeated or di- minished; provided, however, that in the event of such incumbrance taking effect as an actual burden upon the Act of 1896. 179 Increase of benefit a transfer; composition. § 230 interest of the beneficiary, or in the event of the abridg- ment, 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 propor- tionate 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 dura- tion 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 in- crease of benefit accruing to any person or corporation upon the extinction or determination of such charge, estate or interest shall be deemed a transfer of prop- erty taxable under the provisions of this act in the same manner as though the person or corporation benefi- cially entitled thereto had then acquired such increase of benefit from the person from whom the title to their respective estates or interests is derived. When prop- erty is devised or bequeathed in trust for persons in successibn who are all liable to taxation at the same rate, it shall be lawful for the trustees thereof to pay out of the principal of the trust fund or property the taxes to which the particular estates and the expectant estates limited thereon may be respectively liable; and when such remainders or expectant estates shall be of such a nature or so disposed and circumstanced that the taxes thereon shall not be presently payable under, 180 Act of 1896. § 230 Composition of tax on remainders. the provisions of this act, or when property is devised or bequeathed in trust for persons in succession who are not liable at the same rate; or where some of the persons taking in succession are exempt, it shall, never- theless, be lawful for county treasurers and the comp- troller of New York city, by and with the consent of the comptroller of the state, expressed in writing, to agree with such trustees and to compound such taxes upon such terms as may be deemed equitable and expe- dient and to grant discharges to said trustees upon pay- ment of the taxes provided for in such compositions; provided, however, that no such compositions shall be conclusive in favor of such trustees as against the inter- est of such cestuis que trustent as may possess either present rights of enjoyment or fixed, absolute and inde- feasible rights of future enjoyment, or of such as would possess such rights in the event of the immediate ter- mination of particular estates, unless they consent thereto, either personally when competent, or by guard- ian or committee. Such compositions when made shall be executed in triplicate and one copy shall be filed in the office of the comptroller of the state, one copy in the office of the surrogate and one copy be delivered to the trustees who shall be parties thereto. [As amended by L. 1897, chap. 284, in effect April 16, 1897.] * Scope of amendment.— The amendment of 1897 provides that estates in expectancy which are contingent or defeasible shall be appraised at their fnll undiminished value -when the persons en- titled thereto shall come into beneficial possession or enjoyment thereof without deducting the value of the particular estate upon which such estates in expectancy may have been limited. Held not to be retroactive. Matter of Eosach, N". Y. L. J., Nov. 22, 1897 ; Matter of Meyer, 83 App. Div. 381, p. 144. Said amendment further provides that in estimating the value Act of 1896. 181 Appointment of appraisers. § 230 of any estate, no allowance shall be made in respect of any con- tingent incumbrance thereon nor for any contingency which may abridge, defeat or diminish such estate; and that in the event of such contingent incumbrance, abridgment, defeat or diminution of said estate taking effect, a return shall be made to the person properly entitled thereto of a proportionate amount of the tax paid on said estate. Said amendment further provides that, when property is de- vised or bequeathed in trust for persons in succession who are all liable to taxation at the same rate, it shall be lawful for the trustees thereof to pay out of the principal of the trust fund or property the taxes to which the particular estates and ex- pectant estates limited thereon may be respectively liable, and that where such remainders or expectant estates are so disposed and circumstanced that the taxes shall not be presently payable or where the property is devised or bequeathed to persons or cor- porations who are not liable at the same rate, or where some of the persons taking are exempt, the county treasurer or the city comptroller, by and with the consent of the State comptroller, may effect a composition of said taxes upon such terms as may be deemed equitable. See " Future and Contingent Interests^" and cases thereunder, p. 137. Amendment, L. 1899, ch. 76. § 230. Appointment of appraisers — The surrogate, upon the application of any interested party, includ- ing the state comptroller, county treasurers, or the comptroller of New York city, or upon his own motion, shall, as often as, and whenever occasion may require, appoint a competent person as appraiser, to fix the fair market value (at the time of the transfer thereof) of property of persons whose estates shall be subject to the payment of any tax imposed by this article. When- ever 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 182 Act of 1896. § 230 Valuation of estates and return of tax. or limited estate, income, interest or annuity dependent upon any life or lives in being, shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance in as- certaining the value of policies of life insurance and an- nuities for the determination of liabilities of life insur- ance 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 in- terest in property, to the beneficial enjoyment or pos- session whereof there are persons or corporations pres- ently entitled thereto, no allowance shall be made in respect of any contingent incumbrance thereon, nor in respect of any contingency upon the happening of which the estate or property or some part thereof or interest therein might be abridged, defeated or di- minished ; provided; however, that in the event of such incumbrance taking effect as an actual burden upon the interest of the beneficiary, or in the event of the abridg- ment, 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 propor- tionate 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 pro- vided 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, Act of 1896. 183 Immediate taxation of all remainders. § 230 or at any period ascertainable only by reference to death, the increase of benefit accruing to any person or corporation upon the extinction or determination of such charge, estate or interest shall be deemed a trans- fer of property taxable under the provisions of this act in the same manner as though the person or corpora- tion beneficially entitled thereto had then acquired such increase of benefit from the person from whom the title to their respective estates or interests is derived. When property is transferred in trust or otherwise, and the rights, interest or estates of the transferees are de- pendent upon contingencies or conditions ivhereby 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 contingencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith, out of the property transferred; provided, however, that on the happening of any contingency whereby the said prop- erty, or any part thereof, is transferred to a person or corporation exempt from taxation under the provisions of this article, or to a 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 im- posed 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. All estates upon remainder or reversion, 184 Act of 1896. § 230 Taxation of remainders vested prior to 1885. ivhich vested prior to June thirtieth, eighteen hundred and eighty-five, but which will not come into actual possession or enjoyment of the person 1 or corporation beneficially interested therein until after the passage of this act shall be appraised and taxed as soon as the person or corporation beneficially interested therein shall be entitled to the actual possession or enjoyment thereof. [As amended by L. 1899, chap. 76, in effect March 14, 1899. J Scope of amendment. — The amendment of 1899 provides for the immediate taxation of all estates, and in contingent estates that the tax shall be paid out of the principal of the trust fund, at the highest rate possible, to which upon the happening of any of the contingencies the estate might be liable, and for the repayment of any excess of tax as determined by the happening of the contingency, with interest, pursuant to the provisions of section 225. Held constitutional in Matter of Vanderbilt, 172 N. Y. 69, and Matter of Brez, 172 N. Y. 609. See p. 143. Said amendment also omitted the prior amendment made by Laws 1897, chap. 284, providing that estates in expectancy shall be appraised at their full undiminished value when the per- sons entitled thereto come into the beneficial enjoyment or pos- session thereof, which prior amendment had been held not re- troactive in Matter of Hosack, N. Y. L. J., Nov. 22, 1897. The provision was restored and attempted to be made retroactive by a later amendment in Laws 1901, chap. 173, and was again held not retroactive in Matter of Meyer, 83 App. Div. 381. Said amendment also omitted the provision contained in L. 1897, chap. 284, for the composition of taxes upon future or contingent estates in remainder. Said provision was, however, re-enacted in L. 1900, chap. 379, as an independent statute. Laws of 1900, chap. 379, was repealed and its provisions in- corporated in article X of the Tax Law as § 230a by L. 1901, chap. 173. Said amendment also provides that all estates upon remainder or reversion, which vested prior to June 30, 1885, but which will not come into actual possession or enjoyment of the person or corporation beneficially entitled thereto until after the passage of the amendment, viz., March 14, 1899, shall be appraised and taxed as soon as the person or corporation comes into actual Act op 1896. 185 Appointment of salaried appraisers. § 230 possession or enjoyment thereof. This statute was held to be unconstitutional in Matter of Pell, 171 N. Y. 48, 63 N. B. 789, reversing 60 App. Div. 286, 70 N. Y. Supp. 196. See p. 141. See also " Future and Contingent Interests," and cases there- under, p. 137. Amendment, L. 1900, ch. 658. § 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 county of Erie, to act as appraisers therein. The appraisers so appointed shall receive an annual salary, together with their actual and necessary travelling expenses and witness fees, as hereinafter provided, payable monthly by the comp- troller of the city of New York, the treasurers of Kings and Erie counties, out of any funds in their respective 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, and in Erie county three thousand dollars. Each of the said appraisers shall file with the state comptroller his official bond in the penal sum of twenty thousand dollars, conditioned for the faithful perform- ance of his duties as such appraiser, which bond shall be approved by the attorney general and the state comptroller. The comptroller of the city of New York and the treasurer of Kings county shall each retain out of any funds in his hands on account of said tax, the following amounts: 1. A sum sufficient to provide the appraisers of New York county with two stenogra- phers, and of Kings county with one stenographer, ap- 186 Act of 1896. § 230 Appointment of appraisers; valuation of estates. pointed by the state comptroller, whose salary shall not exceed fifteen hundred dollars a year each. 2. A sum to be used in defraying the expenses for office rent, stationery, postage, process serving, et cetera, necessarily incurred in the appraisal of estates, not ex- ceeding three thousand dollars a year in New York county, and one thousand dollars a year in Kings county. Said amounts to be paid upon the certificate and requisition of the state comptroller. In each other county, the surrogate, upon the application of any in- terested party, including the comptroller of the state or county treasurers, shall, as often as, and whenever occasion may require, appoint a competent person as appraiser. The surrogate, either upon his own motion, or upon the application of any interested party, shall by order direct 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 payment of any tax imposed by this article. Whenever a trans- fer 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 imme- diately upon such transfer, or as soon thereafter as practicable. The value of every future or limited es- tate, income, interest or annuity dependent upon any life or lives in being, shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance in ascertaining the value of policies of life insurance and annuities for the determination of liabilities of life insurance companies, except that the rate of interest for making such com- putation shall be five per centum per annum. In esti- mating the value of any estate or interest in property, Act ob- 1896. 187 Valuation of estates; increase of benefit. § 230 to the beneficial enjoyment or possession whereof there are persons or corporations presently entitled thereto, no allowance shall be made in respect of any contingent incumbrance thereon, nor in respect of any contingency upon the happening of which the estate or property or some part thereof or interest therein might be abridged, defeated or diminished; provided, however, that in the event of' such incumbrance taking effect as an actual burden upon the interest of the beneficiary, or in the event of the abridgment, 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 re- spect 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 man- ner 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 ref- erence to death, the increase of benefit accruing to any person or corporation upon the extinction or determi- nation 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 ac- quired such increase or benefit from the person from whom the title to their respective estates or interests is derived. When property is transferred in trust or otherwise, and the rights, interest or estates of the 188 Act of 1896. § 230 Remainders; taxable at once; vested before 1885. transferees are dependent upon contingencies or con- ditions 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 happenings of any of the said contingencies or con- ditions, would be possible* under the provisions of this article, and such tax so imposed shall be due and pay- able forthwith by the executors or trustees out of the property transferred; provided, however, that on the happening of any contingency whereby the said prop- erty, or any part thereof, is transferred to a person or corporation exempt from taxation under the provi- sions 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 be- tween the amount paid and the amount which said per- son 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. All estates upon re- mainder or reversion, which vested prior to June thir- tieth, eighteen hundred and eighty-five, 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. [As amended by L. 1900, chap. 658, in effect April 25, 1900.] * Misprinted as " impossible " in Session Laws. Original law as in text. Act of 1896. 189 Appointment of salaried appraisers. § 230 Scope of amendment. — The amendment of 1900 provides for the appointment and removal of salaried appraisers, stenogra- phers, etc., by the State comptroller in New York, Kings, and Erie counties, and the payment of their salaries. The effect of this amendment was to take away from the surrogates of those counties the power of appointing appraisers of their own selection. See Matter of Sondheim, 69 App. Div. 5. Said amendment also incorporated in the provision beginning " When property is transferred in trust or otherwise," the italicized words "by the executors or trustees," in relation to the payment of the tax. See " Future and Contingent Interests," and cases cited there- under, p. 137. Amendments, L. iotn, chs. 173, 493; L. 190a, ch. 496. § 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 here- inafter provided, payable monthly by the state comp- troller out of any funds in his hands or custody on ac- count of transfer tax. The salaries of each of the appraisers so appointed shall not exceed the follow- ing amounts. In New York county, four thousand dollars; in Kings county, three thousand dollars; in Erie county three thousand dollars; in Westchester county, twenty-five hundred dollars; in Albany, Queens, Monroe and Onondaga counties, one thousand five hun- dred dollars; in Dutchess, Oneida, Suffolk, Orange 190 Act of 1896. § 230 Appointment of salaried appraisers. and Rensselaer counties, one thousand dollars, and in Richmond county, five 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 attorney-general and the state comp- troller. The state comptroller shall retain out of any funds in his hands on account of said tax the following amounts: First. A sum sufficient to pro- vide the appraisers of New York county with five stenographers, and of Kings county with one stenogra- pher, appointed by the state comptroller, whose salary shall not exceed fifteen hundred dollars a year each, and the aggregate of whose salaries in New York county shall not exceed six thousand dollars a year. Second. A sum to be used in defraying the expenses for office rent, stationery, postage, process serving, et •cetera, necessarily incurred in the appraisal of estates, not exceeding five thousand dollars a year in New York county, and one thousand dollars a year in Kings county. In each county in which the office of appraiser is not salaried the county treasurer shall act as ap- praiser. The surrogate, either upon his own m,otion, or upon the application of any interested party, in- cluding the comptroller of the state of New York, shall by order direct the county treasurer in a county in which the office of appraiser is not salaried, and in any other county the person or one of such persons so desig- nated as appraisers to fix the fair market value of Act of 1896. 191 Valuation of estates. § 230 property of persons whose estates shall be subject to the payment of any tax imposed by this article. When- ever 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 there- after as practicable. The value of every future or limited estate, income, interest or annuity dependent upon any life or lives in being, shall be determined by . the rule, method and standard of mortality and value employed by the superintendent of insurance in ascer- taining the value of policies of life insurance and an- nuities for the determination of liabilities of life insur- ance 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 in- terest in property, to the beneficial enjoyment or pos- session whereof there are persons or corporations pres- ently entitled thereto, no allowance shall be made in respect of any contingent incumbrance thereon, nor in respect of any contingency upon the happening of which the estate or property or some part thereof or interest therein might be abridged, defeated or di- minished; provided, however, that in the event of such incumbrance taking effect as an actual burden upon the interest of the beneficiary, or in the event of the abridgment, 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 incumbrance when taking effect, or so much as will reduce the same to the amount which 192 Act of 1896. § 230 Increase of benefit; remainders taxable at once. would have been assessed in respect of the actual dura- tion 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 bene- ficially entitled thereto had then acquired such increase or benefit from the person from whom the title to then- respective estates or interests is derived. When prop- erty is transferred in trust or otherwise, and the rights, interests 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 contingencies or conditions, would be possible un- der the provisions of this article, and such tax so im- posed shall be due and payable forthwith by the ex- ecutors or trustees out of the property transferred; provided, however, that on the happening of any con- tingency whereby the said property, or any part thereof, is transferred to a person or corporation ex- empt from taxation under the provisions of this arti- cle, or to any person taxable at a rate less than the rate imposed and paid, such person or corporation Act of 1896. 193 Remainder; undiminished; vested before 1892. § 230 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 interest thereon at the rate of three per centum per annum 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 con- tingent or defeasible and in which proceedings for the determination of the tax have not been taken or where the taxation thereof has been held in abey- ance, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation thereto- fore 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 re- mainder 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 per- son or corporation beneficially interested therein until after the passage of this act shall be appraised and taxed as soon as the person or corporation beneficially interested therein shall be entitled to the actual pos- session or enjoyment thereof. [As amended by L. 1901, chap. 173, in effect April 1, 1901 ; L. 1901, chap. 13' 194 Act of 1896. § 230 Scope of amendments. 493, in effect April 23, 1901, and L. 1902, chap. 496, in effect April 30, 1902.] I. 1901, chap. 173, § 18. — This act shall take effect April first, nineteen hundred and one, except that salaried appraisers for the counties of Albany, Suffolk, Westchester, Dutchess, Mon- roe, Oneida, Onondaga, Orange and Eensselaer shall not be ap- pointed before January first, nineteen hundred and two, and until such time such counties shall be deemed counties in which the office of the appraiser is not salaried under the provisions of this act. [Amended by L. 1901, chap. 288, in effect April 5, 1901.] The object of the amendment of section 18 was to admit of the immediate appointment of appraisers in Queens and Eich- mond. Scope of amendments to § 230. — The first amendment of 1901 provides for the appointment and removal by the State comp- troller of salaried appraisers in eleven additional counties, fixes their salaries and provides that on the application of any inter- ested party (not including the State comptroller), the surrogate shall direct a county treasurer in a county where the appraiser is not salaried, and in all other counties a salaried appraiser, to make appraisals. Held constitutional in Matter of Fuller, 62 App. Div. 428 (see p. 196) ; Matter of Sondheim, 69 App. Div. 5 (see p. 195). The same amendment also provides for the appraisal of con- tingent or defeasible estates in which proceedings have not been taken or where the taxation thereof has been held in abeyance, at their full undiminished value when the persons entitled thereto shall come into beneficial possession or enjoyment thereof. Held not to be retroactive, and, if retroactive, unconstitutional in Matter of Meyer, 83 App. Div. 381. The apparent effect of this decision is to make the statute void, as in view of the stat- ute passed in Laws 1899, chap. 76, taxing immediately all re- mainders, it could only apply to remainders in estates of de- cedents dying prior to the enactment of said Laws 1899, chap. 76. The same amendment changes the statute passed in Laws 1899, chap. 76, providing for the taxation of all estates in re- mainder which vested prior to June 30, 1885, as soon as they shall come into actual possession, by applying its provisions to remainders and reversions vesting before May 1, 1892. The decision in Matter of Pell, 171 1ST. Y. 48, holding the statute of Act of 1896. 195 Appointment of appraisers. § 230 1899 unconstitutional, would seem to apply to the present stat- ute. See Matter of Pell, p. 141. The second amendment of 1901" merely provides that the State comptroller ' shall be deemed an interested party for the purpose of initiating transfer tax proceedings. The amendment of 1902 increases the number of authorized stenographers for New York county to five, and the aggregate amount of their salaries. It also reduces from 6 to 3 per cent, the interest payable by the State upon the return of an over- payment of tax where, by the happening of a contingency, the rate of tax imposed upon a future or contingent interest should have been 1 instead of 5 per cent. See " Future and Contingent Interests," and cases thereunder, p. 137. Appointment of appraisers. — Appraisers should only be ap- pointed in taxable estates. Decision under Act of 1885. Mat- ter of Jones (Surr. Ct.), 5 Dem. 30, 19 Abb. N. C. 221. The surrogate may appoint an appraiser upon his own mo- tion or upon the petition of any interested party, including the State comptroller. He may act upon a petition based upon information and belief that there is property taxable, although without proof showing what specific property is taxable. Mat- ter of O'Donohue, 44 App. Div. 186, 60 N. Y. Supp. 690, affirm- ing 28 Misc. 607. An appointment of an appraiser, such as he deemed proper, by a surrogate, before the appraisers authorized to be appointed by section 230 of chapter 658, Laws of 1900, had been named, affirmed. Matter of King, 56 App. Div. 617. The surrogate of the county of New York, when appointing an appraiser, must designate one of those appointed by the State comptroller under section 230, as amended by chapter 658 of the Laws of 1900. Matter of .Sondheim, 69 App. Div. 5, 74 N. Y. Supp. 510. Where a surrogate of New York county has made an order designating one of the appraisers appointed by the State comp- troller, and a motion is made " to resettle the order by appoint- ing as appraiser the person directed in said order by the sur- rogate, under the Laws of 1900, to act, or by appointing as appraiser some other competent person to be named by the sur- rogate," the order entered upon said motion rests in the dis- cretion of the surrogate, and is not appealable. Matter of Sondheim, 69 App. Div. 5, 74 N. Y. Supp. 510. County treasurers as appraisers. — Chapter 173 of the Laws of 1901, allowing the county treasurer, acting as appraiser, to 196 Act of 1896. § 230a Composition of tax upon remainders. retain as a part of his fees a certain percentage of all transfpv taxes paid and accounted for by him each year, is constitutional. Matter of Fuller, 62 App. Div. 428, reversing 34 Misc. 750. The whole theory and effect of the law requiring the county- treasurer to act as appraiser is to make him a commissioner of the Surrogate's Court, to look into the facts in relation to an estate, and to report the same in writing, together with the evi- dence on which his conclusion is based, and with these aids, and " other proof relating to any such estate," the surrogate is to reach a final determination of the cash value of the property and the amount of the tax. Matter of Fuller, supra. Time of appointment. — The time of appointment of appraiser is left to the sound discretion of the surrogate. Matter of West- urn, 152 N. Y. 93, 43 N". E. 315. When State comptroller not precluded. — Where no decree was ever entered taxing or exempting an estate, the State comp- troller is not precluded from taking proceedings to assess the tax, by the fact that the proper surrogate, upon the basis of the executor's affidavit, orally expressed to counsel for the estate an opinion that it was not taxable; Matter of Crerar, 56 App. Div. 479, does not control. Matter of Schmidt, 39 Misc. 77. Added, L. iooi, ch. 173. § 230a. Composition of transfer tax upon certain es- tates.— 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 comptroller in any other county, by and with the consent of the attorney- general expressed in writing, is hereby 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 as- certainable under the provisions of chapter four hun- Act of 1896. 197 Proceedings by appraisers. § 231 dred 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 amenda- tory thereof and supplemental thereto; and to com- pound such taxes upon such terms as may be deemed equitable 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 personally, when competent, or by guardian or committee. Com- position or settlement made or effected under the pro- visions 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 trus- tees who shall be parties thereto. [As added by L. 1901, chap. 173, in effect April 1, 1901.] Scope of amendment. — Ee-enacts the provisions of Laws 1900, chap. 379, which is repealed. The Act of 1900 was an inde- pendent act, in effect April 11, 1900. Amendments, L. 1900, ch. 658; L. 1901, ch. 173. § 231. Proceedings by appraiser.— Every such ap- praiser shall forthwith give notice by mail to all per- 198 Act of 1896. § 231 Procetdings by appraisers; subpoenas; reports. 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 prop- erty. 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 wit- nesses before him and to take the evidence of such wit- nesses under oath concerning such property and the value thereof ; and he shall make report thereof and of such value in writing, to the said surrogate, 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 ap- praiser, except in the counties in which the office of appraiser is salaried, for which provision is hereinbe- fore made, shall be paid on the certificate of the sur- rogate, subject to review and audit by the state comp- troller, his actual and necessary traveling expenses and the fees paid such witnesses, which fees shall be the same as those now paid to witnesses subpoenaed to at- tend 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. Ap- praisers 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 authorised by law at the time of their appointment, to be paid by the state comptroller in counties in which the office of appraiser is salaried, Act of 1896. 199 Notice of appraisal; competency of witnesses. § 231 and in other counties by the county treasurer, out of any moneys in his hands on account of this tax. [As amended by L. 1900, chap. 658, and L. 1901, chap. 173, in effect April 1, 1901. J Revised from L. 1892, chap. 399, § 12, which was revised from L. 1885, chap. 483, § 13, in part, as amended by L. 1887, chap. 713, L. 1889, chap. 307, and L. 1892, chap. 167. No change in substance was made in the language of L. 1892. chap. 399, § 12, except by subsequent amendment. Scope of amendments. — The amendments of 1900 and 1901 merely provide that salaried appraisers shall not receive fees or expenses under the section. The amendment of 1901 also adds the last sentence. Notice of appraisal. — An appraiser should mail notices to all persons known to have an interest in the property, and a re- port showing that only the persons whose names appear in the order of appointment were notified is insufficient. Decision under Act of 1887. Matter of Astor (Surr. Ct.), 2 N". Y. Supp. 630, 6 Dem. 402. An appraisal is not regular where the record does not show that the proper officers representing the people had due notice. Matter of Bolton, 35 Misc. 688, 72 N. Y. Supp. 430. The " People " are an interested party, although not cited, and when the district attorney appears it will be assumed that he had authority to do so. Decision under act of 1885. Mat- ter of Amett, 49 Hun, 599, 18 St. Eep. 576, 2 N. Y. Supp. 428. Appraisal where property is in more than one county. — Where property is situated in more than one county, the ap- praiser appointed by the surrogate first acquiring jurisdiction may appraise it all. Decision under Act of 1887. Matter of Keenan (Surr. Ct.), 5 1ST. Y. Supp. 200, 22 St. Eep. 79, 1 Con- noly, 226. Competency of witnesses — Effect of section 829 of Code. — On an appraisal, a residuary legatee and son of the decedent is not forbidden by section 829 of the Code of Civil Procedure from testifying to interviews with decedent tending to show that a particular legacy to him was in payment of a debt for services. Matter of Gould, 19 App. Div. 352, 46 N. Y. Supp. 506, modified as to another point, 156 N. Y. 423. See also Matter of Brun- dage, 31 App. Div. 348, 52 N. Y. Supp. 362. Executor must testify. — An executor cannot refuse to testify in a proceeding before an appraiser for the appraisal of an estate 200 Act ok 1896. § 231 Test of value; appraisal of securities. upon the ground that such testimony may subject him to a pen- alty or forfeiture. Section 837 of Code of Civil Procedure does not apply. Matter of Emily M. Lord, N. Y. L. J., July 9, 1902. Power to issue a commission to take evidence. — The surrogate has power to issue a commission to take the testimony of non- resident witnesses for use before an appraiser in a proceeding to fix a transfer tax upon the estate of a nonresident decedent. Matter of Wallace, 71 App. Div. 284. Appraiser may near evidence as to debts. — An appraiser may hear evidence with regard to a decedent's debts, but only such of them are deductible as could have been enforced against the estate had payment been resisted by it. Matter of Wormser, 36 Misc. 434, 73 1ST. Y. Supp. 748. Value at time of transfer of title to be determined. — 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 title, and not the value at the time of the transfer of possession. Decision under Act of 1887. Matter of Davis, 149 N. Y. 539, 44 N. E. 185, af- firming 91 Hun, 53, 71 St. Rep. 625, 36 N. Y. Supp. 822. If the interest subject to tax cannot be appraised immediately after its transfer, it is to be appraised at its fair and clear market value at the date of its transfer, whenever such value can be ascertained. Decisions under Act of 1892. Matter of Sloane. 154 1ST. Y. 109, 47 N. E. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. See also " Basis of Tax," p. 118. Appraisal of securities; laws 1891, chap. 34, § 1. — "When- ever by reason of the provisions of any law of this state it shall become necessary to appraise in whole or in part the estate of any deceased person, or of any insolvent estate in the hands of a receiver, or of any assignee for the benefit of creditors, or of any corporation in the hands of a receiver or otherwise, the per- sons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated during the year immediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds, or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time." Tn appraising securities under Laws 1891, chap. 34. three months is " a reasonable period of time " for an appraiser to Act of 1896. 201 Appraisal of securities. § 231 consider " the range of the market and the average of prices." Matter of Crary, 31 Misc. 72, 64 N. Y. Supp. 566. For the purpose of taxation an appraiser may properly de- termine the value of securities from reports of public sales thereof at the New York Stock Exchange in compliance with chapter 34, Laws 1891, and where no sales are made he must determine their value from the best information he can obtain. The number of shares held by a decedent, which if sold at one time might depreciate the value, is not to be considered by the appraiser. Decision under Act of 1892. Matter of Gould, 19 App. Div. 352, 46 N. Y. Supp. 506 ; modified as to another point, 156 N. Y. 423. It was held in the Matter of the Appeal Taken by the Executors of the Estate of John Patterson, Deceased (reported in New York Law Journal, May 13, 1898), that chapter 34, Laws of 1891, did not govern appraisers in fixing the value of securities for the reason that chapter 908, Laws of 1896, being a later statute and providing a special system of taxation, the method therein pro- vided should be used, and the value as of the time of the transfer (viz., the date of death) taken as the basis. Subsequently, in Matter of Ottendorfer (N. Y. L. J., Jan.' 14, 1903), it was held that the proper method to be used was that provided by chapter 34, Laws of 1891, on the ground that chapter 34 of the Laws of 1891 was still in force and had not been repealed by chapter 908 of the Laws of 1896. Stock valuation — how determined. — Testator died in March, 1897, the owner of stock in a West Virginia manufacturing cor- poration, incorporated in March, 1896. It appeared that during the first and second years of its incorporation the company paid an annual dividend of 8 per cent.; that there was no regular market value for the stock, but in January, 1897, an officer of the corporation sold 500 shares, having a par value of $100, at $50 per share, and, in July, 1897, he sold 500 more shares at the same price. The same official also testified that he consid- ered such price to be the fair value of the stock. The stock was originally appraised at 50 per cent., but was reappraised at its full par value. Held, in the absence of evidence that the stock was worth more than the price at which it was sold, that the reappraisal was not justified. Matter of Smith, 71 App. Div. 602. 76 N. Y. Supp. 185. Where there is no market value for the stock of a porous plaster company, it appearing that the stock is not for sale and is not listed on any exchange, nor sold on the curb, an appraiser may properly estimate its taxable value upon the basis of the 202 Act of 1896. § 231 Appraisal of securities and trust funds. earning capacity of the corporation, its good will and the value of its secret recipes used in manufacture. Where such a corporation has earned dividends of 48 to 60 per cent, for a number of years, the appraiser is justified in ap- praising the shares at not less than 400 per cent. It seems that where there is no market value for a stock, the actual value must be taken as the market value until the con- trary is shown. Matter of Brandreth, 28 Misc. 468. Where the shares of a joint-stock association are not listed upon the Stock Exchange or sold in open market, if the property of the association consists of realty the value thereof may be considered in appraising the shares. Matter of Jones, 172 N. Y. 575, reversing 69 App. Div. 237, 74 N. Y. Supp. 702. Where a stock is inactive the State may, upon the appraisal, properly introduce as evidence of fair market value, the opin- ion of witnesses qualified to answer, price quotations of the stock contained in market reports and authentic publications, and prices established by sales made in the regular course of business, even though not made on the exchanges. Matter of Proctor, 41 Misc. 79. Appraisal of trust estate, with remainders. — Estates in trust created by will for specified periods, with the remainders vested in beneficiaries, subject to be defeated by death before the ex- piration of such period, must be separately appraised and the tax determined according to the percentage fixed by the statute for those who are contingently entitled to the respective estates, and when fixed, the tax is payable forthwith out of the trust estate. Decision since Laws 1899, chap. 76. Matter of Van- derbilt, 172 N. Y. 69, 64 N. E. 782, modifying 68 App. Div. 27, 74 N. Y. Supp. 450. life interest in trust fund, omitted by appraiser in his report on taxable interests. — Where an appraiser has filed his report and an order has been thereupon entered by the surrogate fixing the tax, which report omitted to tax the life interest of an in- fant in a trust fund, upon the ground that the' value thereof could not then be ascertained, and that the ultimate legatees were indefinite and uncertain, it amounts to an express reservation of the taxation of such life estate. Such interests are taxable when they can be ascertained. Matter of Irwin, 36 Misc. 277, 73 N. Y. Supp. 415. Where estate consists partly of exempt and partly of tax- able property. — Where an estate consists in part of United States government bonds (exempt when the decision was ren- Act of 1896. 203 Deductions. § 231 dered), the debts and expenses of administration should be ap- portioned ratably between the bonds and the taxable personal property. Matter of Purdy, 24 Misc. 301, 53 N. Y. Supp. 735. Appraisal of notes directed to be canceled. — Where a testator directs that certain notes held by him be canceled, they should be appraised at their fair market value. Testimony of the ex- ecutor as to declarations of the testator is not competent evi- dence as to value of the notes, but his testimony to the effect that they were valueless may be considered where no objection is raised that the witness has stated a conclusion of fact. Mor- gan v. Warner, 45 App. Div. 424, 60 N. Y. Supp. 963 ; affirmed on opinion below, 162 N". Y. 612. Settlement of disputed claim. — The amount actually re- ceived by an executor or administrator upon an advantageous compromise of a disputed claim in favor of the estate is the basis for the appraisal and not the face value of the claim. Matter of Thomas, 39 Misc. 223. Deductions — Funeral expenses. — The funeral expenses of a decedent are properly deducted prior to the assessment of tax. Matter of Millward, 6 Misc. 425, 57 St. Eep. 833, 27 N. Y. Supp. 286, cited and approved as to this point; Matter of Edgerton, 35 App. Div. 125 ; affirmed without opinion, 158 N. Y. 671. Deductions — Cost of burial lot. — The reasonable cost of a burial lot, and the cost of fencing and sodding it are to be de- ducted. Matter of Liss, 39 Misc. 123. Deductions — Commissions of trustees. — In valuing an estate for the purpose of taxation, under the Transfer Tax Act, the statutory commissions of a trustee appointed by the will to pay over income to a life beneficiary should be deducted. Matter of Gihon, 169 N". Y. 443, 62 N. E. 561, affirming on this point, 64 App. Div. 504. Deductions — Executor's commission as trustee should be deducted. Matter of Silliman, 79 App. Div. 98, reversing 38 Misc. 226, 77 N. Y. Supp. 267 ; affirmed, 175 N. Y. Mem. 51, without opinion; reversing also in effect, Matter of Becker, 26 Misc. 633, 57 N. Y. Supp. 940. Deductions — Expenses of administration. — In appraising an estate, the commissions and expenses of administration are to be deducted by the appraiser, and where uncertain, they may be estimated. Matter of Gould, 19 App. Div. 352, 46 N. Y. Supp. 596; modified as to another point, 156 N. Y. 423; Mat- ter of Westurn, 152 X. Y. 93, 46 N. E. 315. In valuing an estate for the purposes of a transfer tax the commissions and disbursements of a temporary administrator L ; 04 Act of 1896. § 231 Deductions. appointed in a proceeding to contest the will are deductible. Matter of Gihon. 169 N. Y. 443, 62 N. E. 561, affirming on this point, 64 App. Div. 504. The burden of establishing the propriety of deductions for expenses of administration rests on the executor. Matter of Barowshy, N. Y. L. J., June 28, 1902. Deductions — Disbursements of executor or administrator. — Disbursements honestly and properly made by an executor or administrator in asserting, by litigation, a right of the estate, or in defeating an attack upon it, or in buying peace for it, should be deducted prior to the assessment of tax. Matter of Thomas, 39 Misc. 223. Deductions — Costs of action by executors, — Costs and ex- penses of an action instituted by executors to obtain a judicial construction of a will and instructions as to distribution of the estate, which action was brought in good faith, and was fully justified by results, may be deducted as a necessary expense of administration. Matter of Maresi, 74 App. Div. 76, 77 N. Y. Supp. 1132. Deductions — Commissions of foreign executor. — Upon the decedent. — Upon the appraisal of the estate of a nonresident appraisal of an estate of a nonresident, where no proof is made as to the rate of executor's commissions in the foreign State, the appraiser should make a deduction based upon the relative amount of property in this State, at the rate at which commis- sions are allowed to executors in this State. Matter of Ken- nedy, 20 Misc. 531, 46 N. Y. Supp. 906. Deductions — Taxes. — Taxes levied subsequent to the death of a decedent under an assessment made prior to his death and paid by the executor from the estate should be deducted by the appraiser. Matter of Brundage, 31 App. Div. 348, 52 N. Y. Supp. 362. Taxes on real estate, due and payable at the death of the de- cedent, are to be deducted. Matter of Liss, 39 Misc. 123. Deductions — Worthless account. — The exclusion of a worth- less account, in estimating the value of an estate for the pur- pose of imposing a transfer tax, is proper, because it cannot be deemed to be property transferred or disposed of by will. So held as to an account of a son who was one of the legatees under the will of his father, but who at the time of death of • his father was wholly insolvent. Matter of Manning, 169 N. Y. 449, 62 N. B. 565, affirming 59 App. Div. 624. Deductions — Debts due New York creditors by nonresident decedent. — Upon the appraisal of the estate of a nonresident Act of 1896. 205 Deductions. § 231 member of a firm having a manufacturing branch in New York and a sales department in another State, debts due New York creditors are to be deducted from the New York assets. Mat- ter of King, 71 App. Div. 581, 76 N Y. Supp. 220; affirmed on opinion below, 172 N. Y. 616. Deductions — Value of particular estate. — In appraising a legacy given in remainder after the death or remarriage of the life tenant, the value of the particular estate is to be deducted from the principal of the fund. Matter of Sloane, 154 N. Y. 109, 47 N. B. 978, affirming 19 App. Div. 411, 46 N. Y. Supp. 264. Deductions — Expense of unnecessary action not allowed. — Executors should not be allowed for expenses in an action un- necessarily brought by them, both individually and in their representative capacity, for a construction of the will. Matter of Thrall, 30 App. Div. 271 ; modified as to another point, 157 N. Y. 46. Deductions — Will contest expenses not allowed. — A sum expended by successful contestants in litigation over a will cannot be deducted. Matter of Westurn, 152 N. Y. 93, 46 N. B. 315. Deductions — Money paid to withdraw objections to will not allowed. — Money paid to a niece of a testator by proponents of his will, to induce her to withdraw objections to the pro- bate, is not deductible as an expense of administration. Matter of Marks, 40 Misc. 507. See also Matter of Barowshy, N. Y. L. J., June 28, 1902. Deductions — War revenue tax not allowed. — In valuing an estate for the purpose of transfer tax, the Bederal inheritance tax, under the War Eevenue Act of June 13, 1898, is not de- ductible. Matter of Gihon, 169 N. Y. 443, 62 N. E. 561, re- versing on this point, 64 App. Div. 504, 72 N. Y. Supp. 1104 ; Matter of Irish, 28 Misc. 647, 60 N. Y. Supp. 30 ; Matter of Becker, 26 Misc. 633, 57 N. Y. Supp. 940. Deductions — Taxes not a lien not allowed. — Where testa- tor died January 30, 1901, taxes for the year 1900, assessed against him in the city of New York, are not deductible from his personal estate, the tax not having become a lien at the time of death. Matter of Maresi, 74 App. Div. 76, 77 N. Y. Supp. 1132. Deductions — Legacy tax elsewhere not allowed. — Upon the appraisal of an estate of a nonresident, no deduction should be made for the amount of the legacy tax paid in another State upon the entire estate. Matter of Kennedy, 20 Misc. 531, 46 , N. Y. Supp. 906. 206 Act of 1896. § 231 Deductions. Deductions — When debt not allowed.— Where the time to present a claim to executor for payment has expired and the creditor testifies that he does not intend to enforce the payment of the claim, by the estate, the appraiser is justified in refusing to allow it as a deduction. Matter of Schwartz, N". Y. L. J., Feb. 17, 1903. Deductions — Certain debts owed by nonresident not al- lowed. — In assessing bonds and stocks of a domestic corpora- tion, owned by a nonresident, and located within the State at the time of his death, no deduction should be made for debts of decedent due to residents of this State and secured in part by a pledge of stocks of corporations of other States, where it appears that the value of the pledged securities is greater than the indebtedness and the general assets of the estate are five times in excess of the liabilities. Matter of Pullman, 46 App. Div. 574. Deductions — Mortgage debts not allowed. — A direction by testator to pay certain mortgages out of personalty does not au- thorize the appraiser to deduct the amount from the value of the personal estate. Matter of Berry, 23 Misc. 230, 51 N. Y. Supp. 1132 ; Matter of Be Graaf, 24 Misc. 147, 53 N". Y. Supp. 591. Mortgage debts of the testator are not to be deducted from the personal property prior to the assessment of the tax. Mat- ter of Sutton, 3 App. Div. 208, 73 St. Rep. 758, 38 N". Y. Supp. 277; affirmed without opinion, 149 N. Y. 618; Matter of Of- ferman, 25 App. Div. 94, 48 N. Y. Supp. 993 ; followed in Mat- ter of Murphy, 32 App. Div. 627; affirmed without opinion, 157 N. Y. 679. In assessing a transfer tax upon personalty no deduction should be allowed for mortgages paid by the executors out of the personal estate. Matter of Livingston, 1 App. Div. 568, 72 St. Eep. 552, 37 N. Y. Supp. 463. In determining the amount of a testator's personal estate, the principal of a bond not due at the time of his death, secured by a mortgage on real property owned by him, or accrued interest not yet due thereon, cannot be deducted. Matter of Maresi, 74 App. Div. 76, 77 N. Y. Supp. 1132. Deductions — Repairs to real estate not allowed. — The ex- pense of repairs to real estate under a contract entered into by decedent in his lifetime and not fully completed until after his death, are not deductible from the personalty. Matter of Mc- Neill, N. Y. L. J., June 21, 1902, following Matter of Kemp, Act of 1896. • 207 Report of appraiser. § 231 N. Y. L. J., April 3, 1896 ; affirmed on other points, 7 App. Div. 609, 151 N. Y. 619, and Matter of Baudouine, Surr. Dec. 1895, page 663 ; affirmed, 5 App. Div. 622. This decision was ren- dered before Laws 1903, chap. 41. Appraiser should not rely on counsel. — An appraiser should not rely on briefs of counsel to sustain his findings as to property taxable. Matter of Astor (Surr. Ct.), 2 N. Y. Supp. 630, 6 Dem. 402. Report of appraiser. — The appraiser should report all prop- erty as to which he is in doubt as subject to tax. Matter of Hen- dricks (Surr. Ct.), 3 N. Y. Supp. 281, 1 Connoly, 301, 18 St. Eep. 989. The report of an appraiser must show the grounds of his find- ings. Matter of Bolton, 35 Misc. 688, 72 N. Y. Supp. 430. The report of an appraiser should show that the property was appraised at its fair market value. Matter of Astor ( Surr. Ct. ) , 2 N. Y. Supp. 630, 6 Dem. 402. It is the duty of the appraiser to report all the property as liable to tax, and it is improper for the report to contain a state- ment of the exempt property. Decision under Act of 1887. Matter of Astor (Surr. Ct.), 2 N. Y. Supp. 630, 6 Dem. 402. An appraiser's report showing that he had appraised "All the property of the deceased made known to him by the executor " is insufficient. He should appraise all the property liable to the tax, regardless of the source of his information. Decision under Act of 1887. Matter of Astor (Surr. Ct.), 2 K Y. Supp. 630, 6 Dem. 402. Where an annuity is left to persons exempt, with contingent remainder to persons -taxable, the appraiser should report the market value of the contingent interest at the date of decedent's death, and leave the taxation for future action. Decision under Act of 1885. Matter of Clark (Surr. Ct.), 5 N. Y. Supp. 199, 1 Connoly, 431. Upon a new proceeding for the collection of a transfer tax upon property of a decedent omitted from the first appraisal, it should clearly appear in the report of the appraiser that all of the property remaining of the estate, subject in any contingency to the payment of a tax, is embraced within the proceeding. Matter of Earle, 74 App. Div. 458. Surrogate may remit report. — Before the surrogate has acted upon an appraiser's report, he may send it back to him for the introduction of additional proof. Matter of Kelly, 29 Misc. 169. Surrogate may order further appraisal. — The surrogate has 208 Act of 1896. 231 Report of appraiser. power under section 230, chapter 908, Laws 1896, to order a further appraisal where personalty, not taxed on the first ap- praisal because claimed by a daughter of the decedent as having been assigned to her by her mother, is subsequently adjudged to be a part of decedent's estate. Matter of Lansing, 31 Misc. 148, 64 K Y. Supp. 1125. Reservation of right to tax uncertain claims. — Where deduc- tions for uncertain or doubtful claims are allowed, an appropri- ate recital should be included in the appraiser's report and the order, reserving the right to tax them. Decisions under Act of 1887. Matter of Rice, 29 Misc. 404, 61 N. Y. Supp. 911 ; af- firmed on opinion below, 56 App. Div. 253 ; Matter of Westurn, 152 1ST. Y. 93, 46 N". B. 315. Where an estate is appraised for the purpose of assessing a transfer tax before the judicial settlement of the account of an executor or administrator, if there is reasonable ground for doubt- ing the validity of a debt paid, or the necessity or reasonableness of the expenses of administration, the report of the appraiser should reserve the question of assessing the transfer tax on a portion of the estate equal to the amount of the claim, and pres- ently impose a tax upon the residue. It is improper for the ap- praiser to disallow a portion of the disbursements made in good faith by the executor or administrator, and to assess a tax thereon. Matter of Dimon, 82 App. Div. 107. Conclusiveness of report. — Where the appraiser exhausted every remedy in force at the time the appraisal was made, his acts and conclusions are binding upon the State unless he com- mitted errors for which an appeal might have been taken. De- cision under Act of 1885. Matter of Smith, 14 Misc. 169. The report of the appraiser that certain, legacies are the only ones taxable and confirmed by the surrogate protects the executor from a claim for taxes upon other legacies not included in the assessment. Decisions under Act of 1887. Matter of Vander- bilt (Surr. Ct), 10 K Y. Supp. 239, 2 Connoly, 319; Matter of Wolfe (Surr. Ct.), 15 N. Y. Supp. 539, 2 Connoly, 600; af- firmed on other points, 137 N. Y. 205. Appraiser taking fee or reward. — An appraiser appointed by virtue of the Taxable Transfers 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, § 48c, added by Laws 1893, chap. 692.) Act of 1896. 209 Surrogate; determination of; appeal to. § 232 Amendments, L. 1897, ch. 284; L. 1899, ch. 672; L. 1901, ch. 173. § 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 forth- with, as of course, determine the cash value of all es- tates 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 ap- praiser. The superintendent of insurance shall, on the application of any surrogate, determine the value of any such future or contingent estates, income or in- terest therein limited, contingent, dependent or de- terminable upon the life or lives of persons in being, upon the facts contained in any such appraiser's re- port, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct. The comp- troller of the state of New York or any person dissatis- fied with the appraisement or assessment and determi- nation of tax, may appeal therefrom to the surrogate, within sixty days from the fixing, assessing and de- termination of tax by the surrogate as herein provided, upon filing in the office of the surrogate a written no- tice of appeal, which shall state the grounds upon which the appeal is taken. The surrogate shall imme- diately 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 par- 14 210 Act of 1896. § 232 Guardian for infant; comptroller's reappraisal. ties known to be interested therein, including the state comptroller. //, 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 incompetent, the surrogate shall, if the interest of such infant or in- competent 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 four- teen years of age or of 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 proceedings. 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 determina-' tion has been fraudulently, collusively, or erroneously made, make application to a justice of the supreme court of the judicial district in which the former owner of such estate resided, for a reappraisal thereof. The justice to whom such application is made may there- upon 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 necessarily employed in such appraisal. Such compen- sation 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 appoint- ing him. The report of such appraiser shall be filed Act of 1896. 211 Surrogate as taxing officer. § 232 with the justice by whom he was appointed, and there- after the same proceedings shall be taken and had by and before such justice as are herein provided to be taken and had by and before the surrogate. The de- termination and assessment of such justice shall super- sede the determination and assessment of the surro- gate, and shall be filed by such justice in the office of the state comptroller, and a certificate thereof trans- mitted to the surrogate's court of the proper county. [As amended by L. 1897, chap. 284, in effect April 16, 1897 ; L. 1899, chap. 672, in effect May 25, 1899, and L. 1901, chap. 173, in effect April 1, 1901. J Revised from L. 1892, chap. 399, § 13, as amended by L. 1895, chap. 556, which was revised from L. 1885, chap. 483, § 13, in part, as amended by L. 1887, chap. 713, L. 1889, chap. 307, and L. 1892, chap. 167. The only change made by the revision from § 13 of L. 1892, chap. 399, was to require the filing of a duplicate report in the office of the state comptroller. Scope of amendments. — The amendment of 1897 required a certified copy of an assessment by a justice of the Supreme Court to be filed with the Surrogate's Court of the proper county. The amendment of 1899 added the provision in relation to infants, and omitted the amendment made in 1897. The amendment of 1901 inserted the provision for a five-dollar per-day compensa- tion to appraisers appointed by a justice of the supreme court, and restored the amendment of 1897, which seems to have been inadvertently stricken out by the amendment of 1899. Surrogate is taxing officer. — The surrogate is made the assessing and taxing officer, and as such is the representative of the State. He may proceed with the assessment of the tax with- out notice to any city official. A decree adjudging certain lega- cies exempt is a bar to a subsequent proceeding by the district attorney to enforce a tax thereon. Decision under Act of 1885. Matter of Wolfe, 137 N. Y. 205, 50 St. Eep. 406, 33 N. E. 156, reversing 66 Hun, 389, 50 St. Rep. 115, 21 N. Y. Supp. 515. The surrogate is first made a taxing officer, who upon the report of the appraiser, enters an order fixing the tax "as of course ;" from this determination an appeal lies to the surrogate 212 Act of 1896. § 232 Determination of surrogate. sitting as judge, when for the first time the proceeding takes on a judicial character. Weston v. Goodrich, 86 Hun, 194. The surrogate, in fixing the amount of tax, acts -after the man- ner of an assessor, and this initial step can be performed by him alone. Weston v. Goodrich, supra. Presumption of notice. — In' the absence of proof to the con- trary it is to be presumed that the surrogate has given the requisite notice to persons interested in an estate. Decision un- der Act of 1885. Matter of Miller, 110 N. Y. 216, 18 St. Eep. 226, affirming 47 Hun, 394, Effect of failure to give notice. — As the transfer tax under the Act of 1892 is a lien upon the property until paid, a proceed- ing to assess the tax without notice to the sole heir-at-law of the intestate is void, and the report of the appraiser, although con- firmed by the surrogate, should be set aside. He should not be compelled to pay the tax and then be put to the trouble and expense of applying to the State comptroller for any erroneous payment. Matter of Winters, 21 Misc. 552. Special guardians. — No appointment should be made by a surrogate of a special guardian for an infant interested in re- mainder of an estate, when such interest cannot be determined or taxed in that proceeding. No fee will be allowed such guard- ian. Decision under Act of 1892. Matter of Post, 5 App. Div. 113. Assessment of tax — Persons liable. — The tax on a life estate should be deducted from the income, and on the remainder de- ducted from the principal. Decision under Act of 1885. Matter of Johnson (Surr. Ct.), 6 Dem. 146, 20 St. Eep. 134. A life tenant is not liable to pay the tax upon remainders, but the same should be borne by the beneficiaries. Decision un- der Act of 1887. Matter of McMahon, 28 Misc. 697, 60 N. Y. Supp. 64. Judgment on construction of will not conclusive. — An execu- tor taking a third of a residuary estate absolutely by the terms of the will is not relieved from tax, although in an action to construe the will it was held on extrinsic evidence impressed with a trust. The State is not concluded by the judgment of the Supreme Court entered upon the remittitur of the Court of Appeals, but may examine the remittitur and the opinion. De- cision under Act of 1887. Matter of Edson, 38 App. Div. 19, 56 N. Y. Supp. 409 ; affirmed on opinion below, 159 N. Y. 568. Judgment as to tax, how far conclusive. — A determination by a surrogate in a proceeding under the Inheritance Tax Act that a certain amount of property passed to residuary legatees Act of 1896. 213 Modification of order. § 232 under a will is binding upon the question of taxation only, and is not conclusive upon the rights of parties arising on matters out- side of the will. Amherst College v. Ritch, 151 N. Y. 382, 45 N. E. 876, 37 L. E. A. 305. When failure to tax is determination. — Where a surrogate knowing of the existence of personalty does not tax it, there is a determination that it is not taxable, which becomes final where no appeal was taken from the order, and it has stood for five years. Matter of Lansing, 31 Misc. 148, 64 N. Y. Supp. 1125. MODIFICATION OF OKDEE. A surrogate cannot make an order decreeing that a prior order which has remained unreversed was erroneous and that a pay- ment of transfer tax assessed by it was made in error. Matter of Schermerhom, 38 App. Div. 350, 57 N. Y. Supp. 26. Where both parties mistakenly supposed that an estate was subject to the transfer tax, the proposition not being litigated or decided, but assumed, the surrogate has power, under sub- division 6 of section 2481 of the Code, and section 229 of chap- ter 908 of the Laws of 1896, as amended by Laws 1901, chap. 173, to vacate the decree, although the time to appeal has ex- pired. Matter of Scrimgeour, 175 N. Y. Mem. 45, affirming 80 App. Div. 388. After the time to appeal has expired the surrogate may modify his order assessing the tax by deducting commissions of execu- tors, even where after the payment of the tax their commis- sions were increased by the conversion of realty into personalty. Matter of Silliman, 79 App. Div. 98 ; affirmed without opinion, 175 N. Y. Mem. 51, reversing 38 Misc. 226, 77 N". Y. Supp. 267. Where a tax has been erroneously imposed on United States government bonds, under chapter 399, Laws of 1892, the sur- rogate has power, under Laws 1896, chap. 908, § 225, as amended by Laws 1897, chap. 284, to modify his order and di- rect a refund, although the time to appeal has expired. The comptroller may be mandamused to procure this refund. Mat- ter of Coogan, 27 Misc. 563 ; affirmed without opinion, 45 App. Div. 628, 162 N. Y. 613. Under subdivision 6 of section 2481 of the Code, a surrogate has power to modify an order fixing the transfer tax on an es- tate, after the time to appeal therefrom has expired, where it appears that certain legacies, upon which a 5 per cent, tax was imposed, had elapsed by the death of the legatees prior to that 214 Act of 1896. § 232 Determination of surrogate. of the testator and passed to the testator's widow, in whose hands they were chargeable with a tax of but 1 per cent. Morgan v. Cowie, 49 App. Div. 612, 63 N. Y. Supp. 608. Althougn an exempt legatee has been duly notified by an ap- praiser of the time and place of the appraisal and has made de- fault thereon, yet if not subsequently notified by the surrogate, as required by section 232, of his determination of the taxable value of the legacy, the surrogate may, in the absence of laches, entertain an application made more than sixty days subsequent to the decree, to modify the same; and may thereupon exempt the legatee from the tax. Matter of Daly, 34 Misc. 148, 69 N. Y. Supp. 494. A surrogate has power to modify, ex parte, an order assessing a transfer tax and permit the appraisal to be opened, to allow the executor to show that certain securities of his testator had been appraised higher than their actual market value; Matter of Schermerhorn, 38 App. Div. 350, followed. Matter of Ful- ton, 30 Misc. 70. Where a surrogate has by order confirmed the report of an appraiser under a mistake of fact, he may vacate his order and send the report back to the appraiser for correction; Matter of Crerar, 56 App. Div. 479, distinguished on the ground that there was no mistake of fact in that case. Matter of Earle, 74 App. Div. 458. A surrogate cannot, either under Laws 1892, chap. 399, § 13, Laws 1896, chap. 908, § 230, as amended by Laws 1897, chap. 284, amend an order which was not appealed from so as to con- form it to the appraiser's report, nor can he grant an order di- recting an appraisal of personal property which was in the hands of the executors at the time of the first appraisal, especially where it appears that it was presented to the appraiser for con- sideration and held, not taxable. When property is in the hands of the executors at the time of the appraisal, it is their duty to present it for appraisal, and, if they do present it and the same is erroneously held not taxable by the surrogate, the remedy is by appeal to the surrogate himself and then to the Appellate Division. Matter of Crerar, 56 App. Div. 479, 67 N". Y. Supp. 795, reversing on this point, 31 Misc. 481, 65 K Y. Supp. 573. A surrogate has no power to amend and correct an order by which a transfer tax is erroneously assessed on property exempt from taxation, especially after more than five years have elapsed since the entry of the order. Matter of Von Post, 35 Misc. 367. Act of 1896. 211 Modification of order; appeals. § 232 A surrogate cannot modify his decree so as to allow a deduc- tion for a claim upon which the court has exercised its judg- ment upon the evidence presented to it; Morgan v. Cowie, 49 App. Div. 612, distinguished. Matter of Connelly, 38 Misc. 466, 77 N. Y. Supp. 1113. Where, at a transfer tax appraisal, alleged deductible debts have not been urged before the appraiser, nor reserved for fu- ture action, and the time for an appeal from the order fixing the tax has expired, the surrogate is without jurisdiction to grant any relief in regard to said debts. Matter of Morgan, 36 Misc. 753, 74 N. Y. Supp. 478. A surrogate has no power under Code, § 2481, to open a decree assessing the transfer tax, for error of law or of fact. Matter of Coogan, 27 Misc. 563, distinguished on the ground that in that case the surrogate never had jurisdiction to fix a transfer tax on the United States bonds, and his decree was, therefore, void. Matter of Wallace, 28 Misc. 603. APPEALS. Where the grounds of the appeal are required to be stated, none except those specified can be considered. Matter of Davis, 149 N. Y. 539, 44 N. E. 183, affirming 91 Hun, 53, 71 St. Eep. 625, 36 N. Y. Supp. 822. The fact that the surrogate has failed to give notice to inter- ested parties of the tax imposed by his decree does not relieve from, the necessity of an appeal being taken within the expira- tion of the sixty days from entry of order. Matter of Connelly, 38 Misc. 466, 77 N. Y. Supp. 1113. An executor is a person aggrieved by an order fixing the amount of the tax, and is entitled to appeal from such order. Matter of Cornell, 66 App. Div. 162 ; reversed on another point, 170 N. Y. 423. The comptroller of the city of New York may prosecute an appeal from an adverse decision of the surrogate in a proceed- ing instituted by him, although the powers and duties in respect thereto have devolved upon the State comptroller. Matter of Blackstone, 69 App. Div. 127, 74 N. Y. Supp. 508; affirmed on other points, 171 N. Y. 682 ; affirmed, Blackstone v. Miller, U. S. The receipt by the comptroller of the city of New York of the tax ordered to be paid on a life estate does not estop him from appealing from that portion of the order holding that a vested remainder is not presently taxable; Matter of Lange, N. Y. 216 Act of 1896. § 232 Appeals. L. J., Oct. 26, 1895, followed. Matter of Bogert, 25 Misc. 466, 55 N. Y. Supp. 751. The surrogate on appeal cannot entertain any claim for de- duction not specified in the notice of appeal, citing Matter of Davis, 149 N. Y. 539. Matter of Wormser, 51 App. Div. 441, modifying 28 Misc. 608, 59 N. Y- Supp. 1088. A question may be raised upon an appeal 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 allowed for appeal. Matter of Westurn, 152 N. Y. 93, 46 N. E. 315. The purpose of requiring the notice of appeal to the surrogate to state the grounds of the appeal is to limit the questions to be reviewed by him to those stated in the notice. Neither the Supreme Court nor the Court of Appeals can review any ques- tion except such as are stated in the notice of appeal to the sur- rogate. Matter of Manning, 169 N Y. 449, 62 K E. 565, affirming 59 App. Div. 624. The surrogate may, on an appeal from an order confirming the report of an appraiser, receive evidence that a transfer made by a decedent in her lifetime was made in contemplation of death, and is taxable. It seems that the function of an appraiser is somewhat similar to that of a jury called by the court in an equity case to aid its conscience. The whole matter is with the surrogate, and continues with him until final determination after appeal. Matter of Thompson, 57 App. Div. 317, 68 N. Y. Supp. 18. It seems that the only remedy for correction of purely legal errors involved in a surrogate's determination is by the appeal prescribed by section 13 (now § 232). Morgan v. Cowie, 49 App. Div. 6i2, 63 K Y. Supp. 608. Upon the hearing of an appeal, the surrogate may, in his dis- cretion, deny an application to submit additional papers. Mat- ter of Wormser, 51 App. Div. 441, modifying 28 Misc. 608, 59 N". Y. Supp. 1088. The State comptroller may appeal from a surrogate's order determining that a part of a decedent's estate is not taxable, and, where not a party to the proceeding, has three months in which to take an appeal as provided by section 2572 of the Code. Mat- ter of Dingman, 66 App. Div. 228, 72 K Y. Supp. 694. Section 232, authorizing the State comptroller within two years after the entry of an order of a surrogate assessing a trans- fer tax, to apply to a justice of the Supreme Court for a re- appraisal is not an exclusive remedy, but the comptroller may Act of 1896. 217 Appeals to court of appeals; reappraisals. § 232 appeal to the Appellate Division under section 2570 of the Code. Morgan v. Warner, 45 App. Div. 424, 60 N. Y. Supp. 963 ; af- firmed on opinion below, 162 N. Y. 612. APPEALS TO COURT OF APPEALS. The provision of the Constitution, art. 6, § 9, and of the Code of Civil Procedure, § 191, that no unanimous decision of the Appellate Division that there is evidence supporting a finding of fact shall be reviewed by the Court of Appeals, has no appli- cation to an appeal from an order of the Appellate Division affirming an order of a surrogate reversing the imposition of a transfer tax, where no question of fact was in controversy, and the only question was the legal construction of the instrument of transfer and the statute. Matter of Green, 153 N. Y. 223, 47 N. E. 292, reversing 7 App. Div. 339, 40 N. Y. Supp. 1019. A question of fact which the Court of Appeals has no juris- diction to review is involved upon an appeal from 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 Appellate Division accepted the version of the bene- ficiary's story most favorable to herself. Matter of Thome, 162 N. Y. 238, dismissing appeal from 44 App. Div. 8, 60 N. Y. Supp. 419. REAPPRAISALS. In the absence of fraud or mistake a reappraisement will not be ordered on the ground that after the order fixing the tax was entered the property was sold at public auction for a price ex- ceeding the appraisal. Matter of Bruce (Surr. Ct.), 59 N. Y. Supp. 1083. The Supreme Court cannot vacate an order made by a justice of that court directing a reappraisal of a decedent. Matter of Smith, 40 App. Div. 480, 58 1ST. Y. Supp. 128. A rehearing of an appraisal will not be granted to the State comptroller upon his contention that stocks having no market or quoted value have been appraised too low, unless he produces on his application some definite evidence tending to show that the proof on a rehearing will increase the valuation shown upon the first hearing. Matter of Johnson, 37 Misc. 542, 75 N. Y. Supp. 1046. The provisions of section 232, authorizing the comptroller to apply for a reappraisal, apply only to errors of fact, and where 218 Act of 1896. § 233 Surrogate's assistants in New York county. the decree of the surrogate has erroneously determined, as a matter of law, that a bequest to an executor for his services is exempt, the only remedy of the comptroller is by appeal. Matter of Niven, 29 Misc. 550, 61 N. Y. Supp. 956. Upon an application for a new appraisal the appraiser must not reappraise property included in the original appraisal at a higher valuation than that fixed on such appraisal nor reduce the allowance made in the first appraisal for debts due by the decedent and for expenses of administration, although some of such debts have been successfully disputed by the executors, and the expenses of administration have proved less than estimated. These matters are res adjudicata until the order is reversed or modified. Matter of Bice, 56 App. Div. 253, affirming 29 Misc. 404, 61 N. Y. Supp. 911. COSTS. Allowance of costs in discretion of surrogate.- The allow- ance 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, 58 St. Eep. 699, 27 1ST. Y. Supp. 1086. Amendments, L. 1898, ch. 289; L. 1901, ch. 173. § 233. Surrogates' assistants in New York county.— The surrogates of the county of New York may jointly appoint and at pleasure remove assistants as follows : 1. 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 sal- ary of eighteen hundred dollars ; a recording clerk, at a salary of thirteen hundred dollars ; and shall be en- titled to not more than five hundred dollars a year for expenses necessarily incurred in the assessment and collection of taxes under this article. Such salaries and expenses shall be payable monthly by the state comptroller on the certificate and requisition of the surrogates, accompanied by proper vouchers, out of Act of 1896. 219 Surrogate's assistants in Kings and other counties. § 234 any funds in his hands on account of taxes collected under this article. [Amended by L. 1898, chap. 289, in effect April 19, 1898, and L. 1901, chap. 173, in effect April 1, 1901. J Amendments, L. 1899, ch. 389; L. 1901, ch. 173; L. 1903, ch. 283. § 234. Surrogates' assistants in Kings and certain other counties.— The surrogates of the counties mentioned in this section may appoint and at pleasure remove as- sistants as follows: 1. 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 thousand dollars; and shall be entitled to not more than five hundred dollars a year, for expenses necessarily in- curred in the assessment and collection of taxes under this article. 2. In the county of Westchester, a transfer tax as- sistant, at an annual salary to be fixed by the surro- gate, of not more than two thousand dollars. 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 trans- fer tax clerks, at an annual compensation to be fixed by the surrogate, of not more in the aggregate than twelve hundred dollars. 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. 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. 220 Act of 1896. § 235 Collection of taxes by district attorney. 7. In the county of Monroe, two transfer tax clerks, at an annual salary of seven hundred and fifty dollars each; and shall be entitled to not more than two hun- dred dollars a year for expenses necessarily incurred in the assessment and collection of taxes under this article. 8. In the county of Erie, a transfer tax clerk, at an annual salary of eighteen hundred dollars. 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. 10. In the county of Dutchess, a transfer tax clerk, at an annual salary, to be fixed by the surrogate, of not more than nine hundred dollars. Such salaries and expenses shall be payable monthly by the state comptroller on the certificate and requisi- tion of the surrogate of each of such county, accom- panied by proper vouchers, out of any funds in his hands on account of taxes collected under this article. [Amended by L. 1899, chap. 389; L. 1901, chap. 173, and L. 1902, chap. 283, in effect March 29, 1902.] Scope of amendments. — As amended in 1901 this section in- cludes Laws 1892, chap. 399, Laws 1895, chap. 861, Laws 1896, chap. 953, Laws 1897, chap. 375, Laws 1899, chaps. 269, 270, 406, providing for surrogates' assistants in various counties. The acts referred to were repealed. The amendment of 1902 added subdivision 10 as to Dutchess county. Amendment, L. 1901, ch. 173. § 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 Act of 1896. 221 Collection of taxes by district attorney. § 235 article, after the refusal or neglect of the persons lia- ble therefor to pay the same, he shall notify the dis- trict attorney of the county, in writing, of such failure or neglect, and such district attorney, if he have prob- able cause to believe that such tax is due and unpaid, shall apply to the surrogate's court for a citation, cit- ing the persons liable to pay such tax to appear before the court on the day specified, 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 application, 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, and 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 pro- visions of the code of civil procedure for the service of citations out of the surrogate 's court, and the hear- ing and determination thereon and its enforcement so far as the same may be applicable. The surrogate or his clerk shall, upon request of the district attorney, county treasurer, or the comptroller of the state, fur- nish, without fee, one or more transcripts of such de- cree, 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 courts. The costs awarded by any such decree after the collection and payment of the tax to the county treasurer or state comptroller may be re- tained by the district attorney for his own use. Such 222 Act of 1896. § 235 Collection of taxes by district attorney. costs shall be fixed by the 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 treasurer shall pay or allow to the county treas- urer or the state comptroller all expenses incurred for the service 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 hundred 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 comptroller shall pay such expenses out of any funds which may be in his hands on account of this tax; provided, hoivever, that in the collection of taxes upon estates of non-resident decedents, which estates have been concealed or the taxes thereon evaded, the state comptroller shall not allow for legal services up to and including the entry of the order of the surro- gate 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 Act of 1896. 223 Collection of taxes; decisions. § 235 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 benefici- aries to the former owner thereof. [As amended by L. 1901, chap. 173, in effect April 1, 1901.] Revised from Laws 1892, chap. 399, § 15, as amended by Laws 1895, chap. 378, which was revised from Laws 1885, chap 483, §§ 16, 17, 19, as amended by Laws 1887, chap. 713, and Laws 1892, chap. 168. Scope of amendment. — The amendment of 1901 is indicated by italics, and was necessitated by the requirements for salaried appraisers in certain counties, and the direct payment of the tax in such counties to the State comptroller. It also added the limitation of compensation to attorneys in the case of nonresi- dent estates to 10 per cent, of the amount of taxes and penalties collected. DECISIONS. The Surrogate's Court has power to decide every question that may arise " in a proceeding under the act, which may be necessary to fully discharge the duties imposed upon it. Mat- ter of Ullman, 137, N. Y. 403, 33 N. B. 480, 51 St. Eep. 1, reversing 67 Hun, 5, 21 N. Y. Supp. 758, 50 St. Eep. 748. An order for the payment of tax cannot be enforced by pro- ceedings for contempt before the return of an execution on the surrogate's decree. Decision under Act of 1885. Matter of Prout (Surr. Ct.), 3 N. Y. Supp. 831, 19 St. Eep. 318. The surrogate cannot on the motion of the executor decide the question of the liability to pay the tax. Proceedings must be instituted by the district attorney. Decision under Act of 1887. Matter of Farley (Surr. Ct.), 15 St. Eep. 727. Proceedings by the district attorney for the enforcement and collection of & tax may be taken only when the tax is due and has not been paid. Decision under Act of 1885. Matter of Wolfe, 137 N. Y. 205, 50 St. Eep. 406, 33 N. E. 156, reversing 66 Hun, 389, 50 St. Eep. 115, 21 N. Y. Supp. 515. District attorney proceedings for the enforcement of the tax are not to be taken until after eighteen months from the date 224 Act of 1896. § 236 Receipts from treasurer and comptroller. of death of decedent, and no costs should be allowed against executor or trustee where proceedings are instituted prior thereto. Decision under Act of 1887. Frazer v. People (Surr. Ct.), 3 N". Y. Supp. 134, 6 Dem. 174. An action to compel payment of a legacy tax is not an action for a penalty which must be brought within two years after the cause of action accrues (Code, § 384). Matter of Wolfe (Surr. Ct.), 15 N". Y. Supp. 539, 2 Connoly, 600; affirmed on other points, 137 N. Y. 205. An objection to the amount of an assessment cannot be raised on proceedings to compel the payment of the tax, where no appeal from the order fixing the amount of said tax was taken in the time limited therefor. Matter of Hacket, 14 Misc. 282. Costs allowed to district attorney must be taxed in the same manner as other costs in surrogate proceedings. Matter of Mc- Carthy, 5 Misc. 276. Assuming that the transfer tax is "a liability created by statute," and within the six years' limitation under Code, § 382, subd. 2, the statute has been repealed as to proceed- ings to collect the tax by Laws 1899, chap. 737, adding section 282 to the Tax Law. (See p. 231 for § 282.) Matter of Moench, 39 Misc. 480. Amendment, L. 1901, ch. 173. § 236. Receipt from the county treasurer and comptroller. —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 comptroller, or at his op- tion to a copy of a receipt that may have been given by such treasurer or state comptroller for the payment of any tax under this article, under the official seal of such treasurer or comptroller, which receipt shall designate 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 re- ceipt 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- Act of 1896. Fees of treasurer; books and forms. §§ 237, 238 5 — fer tax." [As amended by L. 1901, chap. 173, in effect April 1, 1901.] Eevised from Law 1892, chap. 399, § 16, which was revised from L. 1885, chap. 483, § 23, as amnded by L. 1887, chap. 713. Scope of amendment. — Substitutes "State comptroller" for " comptroller of city of New York." Amendments, L. i«o8, ch. 289; L. 1001, ch. 173. § 237. Fees of county treasurer — The treasurer of each county in which the office of appraiser is not sal- aried 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. [Amended by L. 1898, chap. 289, and L. 1901, chap. 173, in effect April 1, 1901. J Revised from L. 1892, chap. 399, § 17, as amended by L. 1893, chap. 704, which was revised from L. 1885, chap. 483, § 22, as amended by L. 1887, chap. 713. § 238. Books and forms to be furnished by the state comptroller.— The comptroller of the state shall fur- nish 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 15 226 Act of 1896. § 239 Reports of surrogate and county clerk. devisees in any will of any such decedent, the amount of each legacy and the estimated value of any real property devised therein, and to whom devised. These entries shall be made from the data contained in the papers filed on any such application, or in any proceed- ing relating to the estate of the decedent. The sur- rogate shall also enter in such book the amount of the personal property 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 fur- nish 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 L. 1892, chap. 399, § 18, which was revised from L. 1885, chap. 483, § 20, as amended by L. 1887, chap. 713. Amendment, L. 1901, ch. 173. § 239. Reports of surrogate and county clerk. — Each surrogate shall, on January, April, July and October first of each year, make a report in duplicate, 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 immediately delivered to the county treasurer and the other transmitted to the state comptroller. The county clerk of each county, except in the counties where the registers perform the Act op 1896. 227 Reports of county treasurer. § 240 duties of the county clerk with respect to the record- ing of deeds, and when in such counties' the registers, shall, at the same time, make reports in duplicate, containing a statement of any deed or other convey- ance filed or recorded in his office, of any property, which appears to have been made or intended to take effect in possession or enjoyment after the death of the grantor or vendor, the name and place of residence of such grantor or vendor, the name and place of residence of the grantee or vendee, and a description of the prop- erty transferred, one of which duplicates shall be im- mediately delivered to the county treasurer or comp- troller and the other transmitted to the state comp- troller. 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 comptrol- ler as herein required. [As amended by L. 1901, chap. 173, in effect April 1, 1901.] Revised from L. 1892, chap. 399, § 19, which was revised from L. 1885, chap. 483, § 18, as amended by L. 1887, chap. 713. Scope of amendments. — Indicated by italics. Amendment, L. iooi, ch. 173. § 240. Reports of county treasurer.— Each county treasurer in a county in which the office of appraiser is %ot salaried shall make a report, under oath, to the state comptroller, on January, April, July and October first of each year, of all taxes received by him under this ar- ticle, stating for what estate and by whom and when paid. The form of such report may be prescribed by the state comptroller. He shall, at the same time, pay the state treasurer all taxes received by him under this 228 Act of 1896. § 240a State comptroller; deposit of taxes; report. 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 L. 1901, chap. 173, in effect April 1, 1901.] Revised from L. 1892, chap. 399, § 20, which was revised from L. 1885, chap. 483, § 21, as amended by L. 1887, chap 713. Added, L. 1901, ch. 173. § 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, bank- ing 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 de- posit, to the credit of the state comptroller 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 comp- troller, for the safe keeping and prompt payment on legal demand therefor of all such moneys held by or on deposit in such bank, banking-house or trust com- pany, with interest thereon on daily balances at such rate as the comptroller may fix. Every such under- taking 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 Act of 1896. 229 Application of taxes; definitions. §§ 241, 242 credit himself with, all expenditures made since his last previous return on account of such taxes, for sal- ary, 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 L. 1901, chap. 173, in effect April 1, 1901.] New. Amendment, L. iooi, ch. 173. § 241. Application of taxes — All taxes levied and col- lected under this article when paid into the treasury 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 L. 1901, chap. 173, in effect April 1, 1901.J Revised from L. 1892, chap. 399, § 21, which was revised from L. 1885, chap. 483, § 24, as amended by L. 1887, chap. 713. Scope of amendment is indicated by italics. Amendments, L. 1898, ch. 88; L. iooi, ch. 173. § 242. Definitions.— The words "estate " and" prop- erty," as used in this article, shall be taken to mean the property or interest therein of the testator, intes- tate, grantor, bargainor or vendor, passing or trans- ferred to those not herein specifically exempted from the provisions of this article, and not as the property of interest therein passing or transferred to individ- ual legatees, devisees, heirs, next of kin, grantees, do- nees or vendees, and shall include all property or in- terest therein, whether situated within or without this 230 Act of 1896. § 242 " Transfer/' " estate " and " property " denned. 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, pres- ent or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein prescribed. The words " county treasurer," " comp- troller," and " district attorney," as used in this ar- ticle, shall be taken to mean the treasurer, state comp- troller or the district attorney of the county of the sur- rogate having jurisdiction as provided in section two hundred and twenty-nine of this article. [As amended by L. 1898, chap. 88, in effect March 21, 1898, and L. 1901, chap. 173, in effect April 1, 1901.] Revised from L. 1892, chap. 399, § 22, which was new in that law. Scope of amendments. — The amendment of Laws 1898 omitted from the definition of property after words " without the State " the words "over which this State has any jurisdiction for the purpose of taxation." The amendment of 1901 added the word "'State" as italicized. Prior to said amendment of 1898 the Court of Appeals held that it was the jurisdiction of the State to sub- ject property to taxation under its general taxing power, and not whether the jurisdiction has been exercised, which is the test of exemption. A transfer of United States bonds was, therefore, held exempt. Matter of Sherman, 153 N. Y. 1, 46 K E. 1032, affirming 15 App. Div. 628. Subsequent to the amendment, a transfer of United States bonds was held taxable. Matter of Tlummer, 30 Misc. 19 ; affirmed, 47 App. Div. 625, 161 N. Y. 631 ; affirmed as Plummer v. Coler, 178 U. S. 115. " Transfer " defined. — The term " transfer " is used in its ordinary legal significance, viz. : That the owner of a thing de- livers it to another with the intent of passing the rights he has in it to the latter. Matter of Gould, 156 N. Y. 423, 51 N. E. 287, modifying 19 App. Div. 352, 46 N. Y. Supp. 596. Property subject to tax. — The words " estate " and " prop- erty " as defined in this section are not limited by the definition of personal property in section 2, subdivision 5 of the Tax Law. Act of 1896. 231 Exemptions; statute of limitations. §§ 243, 282 " The distinction between property subject to ordinary taxation and that liable to the imposition of the transfer tax was early appreciated. * * * All property having an appraisable value must be considered, whether it is 'such as might be taxed under the general law or not." The transfer of a seat in the New York Stock Exchange, although not included in the above definition of personal property, is taxable under section 242 as such. Matter of Hellman, 174 N. Y. 254, reversing 77 App Div. 355. Added, L. 1900, ch. 38a. § 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 by L. 1900, chap. 382, in effect April 11, 1900.J For the effect of this section see " The Exemption of Corpora- tions and Institutions " and cases cited p. 150. Added, L. 1899, ch. 737- ARTICLE XIII. § 282. Limitation of time The provisions of the code of civil procedure, relative to the limitation of time of enforcing a civil remedy, shall not apply to any proceeding or action taken to levy, appraise, assess, determine or enforce the collection of any tax or pen- alty prescribed by articles nine or ten of said chapter, and fhis act shall be construed as having been in effect as of date of the original enactment of the corporation and inheritance tax law, provided, however, that as to real estate in the hands of bona fide purchasers, the transfer tax shall be presumed to be paid and cease to be a lien as against such purchasers after the ex- 232 Act of 1896. § 17 Laws repealed. piration of six years from the date of accrual. This act shall not affect any action or proceeding now pending. [Added by L. 1899, chap. 737, in effect May 26, 1899.] Laws repealed — L. 1901, Ch. 173. § 17. 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, chap- ter three hundred and seventy-five of the laws of eigh- teen hundred and ninety-seven ; and chapters two hun- dred 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. All of the foregoing statutes, except L. 1900, chap. 379, re- late to the employment and salaries of transfer tax clerks and assistants in different counties of the State. L. 1900, chap. 379 provide for the composition of taxes upon remainders not presently payable. Part IV. FORMS. PETITION FOR APPOINTMENT OF APPRAISER IN ESTATE OF RESIDENT DECEDENT. SUEEOGATE'S COUET — County of In the Mattee of the Transfer Tax Upon the Estate of Deceased. To the Surrogates' Court of the County of The petition of respectfully shows : First. That your petitioner is the decedent, and as such a person interested in the estate of the said decedent. Second. That the said decedent departed this life on the day of , at ; that the said de- cedent was a resident of Third. That letters on the estate of said decedent were, on the day of , issued to your petitioner by the Surrogates' Court of the County of , and that h post-office address is Fourth. That, as your petitioner is informed and believes, the property of said decedent, or some portion thereof or some in- terest therein, is or may be subject to the payment of the tax imposed by the law in relation to taxable transfers of property. Fifth. That all persons who are interested in said estate and who are entitled to notice of all proceedings herein, and their post-office addresses, are as follows: Comptroller, Albany, N. Y. [233] 234 Forms. Nonresident decedent; petition for appraiser. That all the above named are of full age and sound mind, except Wherefore your petitioner prays that you will designate an appraiser, as provided by law. Dated, , Petitioner. County of , [ gs . , being duly sworn, deposes and says : That he is the petitioner herein ; that he has read the foregoing petition sub- scribed by h and knows the contents thereof; that the same is true to h 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 I day of i PETITION FOR APPOINTMENT OF APPRAISER IN ESTATE OF NONRESIDENT DECEDENT. SURROGATES' COURT — County. In the Matter of the Transfer Tax Upon the Estate of Deceased. To the Surrogates' Court: The petition of respectfully shows : First. That he is the Comptroller of the State of New York. Upon information and belief: Second. That on or about the day of , , then residing without the State of New York, was seized and possessed of property in the County of and State of New York subject to taxation under the Act in relation to Taxable Transfers of Property to the value and up- wards of ten thousand dollars ($10,000), and that on the said day of the said decedent departed this life. Third. That said decedent made a last Will and Testament, which was thereafter and on or about the day of Forms. 235 Order appointing appraiser. , duly admitted to probate by the Court of the County of , State of , by the terms of which said decedent appointed Fourth. That said property, or some part thereof, is subject to the Act in relation to Taxable Transfers of Property; that no payment of such tax has been made, and that no. proceeding has been brought to fix and determine the same by the representa- tives of said decedent, although said property has been, or is about to be, removed from the State of New York without the payment of said tax. That no application for letters, ancillary or otherwise, has been made by the representatives of said decedent in County. Fifth. That all the persons who are interested in said estate and who are entitled to notice of all proceedings, and their ad- dresses, are as follows : Comptroller, Albany, N. Y. Wherefore, your petitioner prays for the appointment of some competent person as appraiser, as provided by law. Dated, Albany, N. Y. Note: Verification same as for resident petition. ORDER APPOINTING APPRAISER. At. a Surrogate's Court, held in and for the County of , at the County Court House in the of , on the day of Present : Hon , Surrogate. In the Matter of the Transfer Tax Upon the Estate of ! » Deceased. i On reading and filing the petition of of said de- cedent, I do hereby, pursuant to the requirement of Chapter 658 236 Forms. Oath of appraiser. of the Laws of 1900, direct , Esq., to fix the fair market value of the property which was of the above-named decedent and which is subject to the payment of any tax im- posed by Article X, Chapter 908, Laws of 1896, and the Acts amendatory thereof and supplemental thereto. OATH OF APPRAISER. SURROGATE'S COURT — County. In the Matter of the Transfer Tax Upon the Estate op Deceased. State of New York, [ ss County op j , being duly sworn, doth depose and say that he is the appraiser appointed in this case by order of Hon. , Surrogate, dated the day of , under and in pursuance of Article X of the Tax Law, as amended, in relation to Taxable Transfers, and that he will faithfully and fairly perform the duties of such appraiser, ac- cording to the best of his understanding. Sworn to before me, this ) .... day of f Forms. 237 Appraiser's notice of hearing. APPRAISER'S NOTICE OF HEARING. SURROGATE'S COURT — County of In the Matter of the Transfer Tax Upon the Estate of Deceased. You will please to take notice that, by virtue of an order of Hon , Surrogate of the County of , made and dated the day of , 190. ., and pursuant to provisions of Chapter 908 of the Laws of 1896, relating to Taxable Transfers of property, and the acts amendatory thereof, I shall on the day of , 190. ., at o'clock in the noon of that day, at , in the , proceed to appraise at its fair market value all the property of said , deceased, late of , passing by h last Will and Testament (or by the Intestate Laws of the State of New York), which is sub- ject to the payment of the tax imposed by the said Act and the Acts amendatory thereof. And such of you as are hereby notified 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 repre- sent and act for you in the proceeding. ? Appraiser. , , 190.. To , 238 Forms. Appraiser; affidavit of mailing; subpoena. AFFIDAVIT OF MAILING OF NOTICE OF HEARING. County of , ss.: , a Clerk in , being duly sworn, says, that he is over eighteen years of age, and that on the day of , 190.., he deposited in the Post-Office, at •...., a copy of the foregoing notice, contained in securely closed post-paid wrappers, directed to each of the above-men- tioned persons, respectively, at the address set opposite their names, being all the persons known to have or claim an interest in the property passing by the will of , or by the Intestate Laws of this State, which is subject to the payment of the tax imposed by the said acts. Sworn to before me, this I 190. J SUBPOENA OF APPRAISER. The People of the State of New York, To Greeting : We Command you, That all business and excuses being laid aside, you and each of you appear and attend at in , in the City of , on the day of , 190. . at o'clock, in the noon, before the under- signed, heretofore duly designated by the Hon , Surrogate of the County of , under the Transfer Tax Acts as Appraiser, in a certain proceeding now pending in the Surrogates' Court for the County of , entitled " In the matter of the Appraisal under the Transfer Tax Acts of the property of , deceased," to testify what you and each of you may know concerning the estate of the said de- cedent, on the part of (the Comptroller of the State of New York), and that you bring with you and then and there produce at the time and place aforesaid and for a failure' to attend, you will be deemed guilty of a con- tempt of Court, and liable to pay all loss and damages sustained FORMS. Request to superintendent of insurance. 239 thereby to the party aggrieved, and forfeit Fifty Dollars in addition thereto. Witness, , Appraiser, at No , in the and City of , the day of , one thousand nine hundred and Appraiser. REQUEST TO SUPERINTENDENT OF INSURANCE. Chambers of the Surrogate's Court, County of , Estate of Deceased. Date of death Dear Sir : In pursuance of Chapter 483, Laws of 1885, and the acts amendatory thereof and supplemental thereto, you are hereby 'requested to determine and ascertain the values of the following Estates, Annuities and Interests. NAME. AGE. LEGACY OR ESTATE. Valuw or Amount. To Superintendent of the Insurance Department. Yours respectfully, Surrogate. 240 Forms. Report of appraiser. REPORT OF APPRAISER. SURROGATE'S COUKT — County of In the Matter of the Appraisal of the Estate of , deceased, under the acts in relation to the Taxable Transfers of Property. Decedent died , 190. ., a legal resident of the County of and State of Eeport of Appraiser. To Hon Surrogate of County, New York. I, the undersigned appraiser, who was by an order of the Surrogate of County, duly made and entered 'on the day of , 190. ., directed to appraise the property of said decedent, at its fair market value at the time of the transfer thereof, in pursuance of the laws in relation to Taxable Transfers of Property, do respectfully report: First. That pursuant to Chapter 908 of the Laws of 1896, as amended, I duly took and subscribed the oath prescribed by Statute, and filed the same as therein provided. Second. That on the day of , 190. ., I gave notice by mail, postage prepaid, to such persons, corpora- tions, etc., known to have, or claim an interest in any property of said decedent subject to the payment of any tax imposed by said laws, including the Comptroller of the State of New York (and those persons and corporations named by the Surrogate in his said order), of the time and place at which I would appraise said property, a true copy of which notice together with proof of mailing is hereto annexed. That the names of those to whom I mailed such notices, prop- erly addressed, as appears by proof of mailing, are as follows : State Comptroller, Albany, N. Y. Surrogate. Forms. Report of appraiser. 241 Third. At the time and place in said notice stated, namely, on the day of , 190. ., (and at other and subse- quent times and divers places to which these proceedings were regularly adjourned), I appraised all the property, real and personal, of which the said decedent died possessed, and subject to the payment of said Transfer Tax, at its fair market value at the time of said transfer, as follows, namely : PERSONAL ESTATE. (It is desired that the appraiser should classify the prop- erty in the following order : — 1, Bonds ; 2, Stocks ; 3, Bonds and Mortgages on real estate, promissory notes, etc. ; 4, Cash in Banks; 5, All other Personal Property.) DESCRIPTION OF PROPERTY. Par value. Fair market value at time of decedent's death. 16 242 FOEMS. Report of appraiser. REAL ESTATE. (If the real estate of decedent passes by will or the Statute of Descent to Persons, or by will to Corporations or Institu- tions, exempt by said Acts, do not appraise the same.) BRIEF DESCRIPTION. Fair market value at time of decedent's death. Fourth. I further report that decedent's estate is subject to the following deductions on account of debts, claims, expenses of administration and commissions, as follows : DEBT OR CLAIM OF. Nature of same. Amount. FOKMS. 243 Report of appraiser. Fifth. RECAPITULATION. Total amount of decedent's personal estate. . . .$ Total amount of decedent's real estate devised to persons, corporations or institutions, or passing by the Statute of Descent to persons, other than such as are exempt by said Acts. .$ Total From which debts, expenses of administration, etc., as enumerated in the " Fourth " Finding above, are to be deducted, amounting to. . Leaving the sum of which is the net estate transferred by testator's will, (or the intestate laws of the State) as follows : NAMES AND RESI- DENCE OF THE PER- SONS. CORPORA- OS .- of , on the day of , 190.. Present : Hon In the Matter op the Transfer Tax Upon the Estate op Deceased. An appeal having been taken by the from the order fixing tax entered herein on the day of , 190.., upon the report of the appraiser filed herein on the day of , 190. ., on the grounds that the as more fully set forth and described in the notice of appeal duly filed herein, And said appeal coming on to be heard, after hearing , Esq., for the , Appellant, and , Esq., for the , Eespondent. Now., on motion of , Attorney for the It is ordered and adjudged That said appeal be and the same hereby in all respects is It is further ordered and adjudged Forms. 249 Notice of appeal to Appellate Division. NOTICE OF APPEAL TO APPELLATE DIVISION. SUEEOGATE'S COUET — County of In the Matter of the Transfer Tax Upon the Estate of Deceased. Sirs :— Please take notice that A. B., executor of the last will and testament (or administrator of the goods, chattels and credits) of C. D., deceased, hereby appeals to the Appellate Division of the Supreme Court of the State of New York for the Department, from the order of the Surrogate of the county of , heretofore made and entered herein on the day of , affirming the order theretofore made and entered on the day of , fixing a tax upon the estate of said decedent under the act relating to Taxable Trans- fers and from each and every part thereof (or from so much thereof as purports to fix a tax upon, etc. ) . Dated, the day of Yours, etc., Attorney for C. D., executor of the Last Will and Testament (or administrator of the goods, chattels and credits) of E. ¥., deceased, appellant. To , Esq., Clerk of the Surrogate's Court of the County of To , Esq., Attorney for the Comptroller of the State of New York, or County Treasurer of the County of 250 Forms. Petition for remission of penalty. PETITION FOR REMISSION OF PENALTY. SURROGATE'S COURT — County of In the Matter of the Transfer Tax Upon the Estate of Deceased. To the Surrogate's Court of the County of : The petition of respectfully shows : That he resides at of That said decedent died on the day of , , a resident of That proceedings have been had herein for the determina- tion of the transfer tax upon the estate of said decedent as follows : That more than eighteen months have elapsed since the date of death of said decedent and a penalty of 10% per annum from the date of death to the date of payment as provided by statute is due because of the nonpayment of this tax. That by reason of (state the cause of delay in payment of the tax. It must be unavoidable,, such as litigation, etc.) That your petitioner is desirous of paying such tax and that in order to obtain the proper final receipt therefor from the State Comptroller your petitioner makes this application pursu- ant to the provisions of said act for the remission of the penalty, incurred by reason of the nonpayment of such tax within eigh- teen months after the date of death of said decedent, from 10% to interest at 6%. Wherefore your petitioner prays that an order be made re- mitting the penalty upon the tax heretofore fixed herein from 10% to 6%, to be charged upon said tax from the accrual thereof, Forms. 251 Notice of motion to remit penalty. to wit: from the date of death of said decedent to the date of payment; provided such payment be made within days from the date of the entry of the order of the surrogate on this application ; and that your petitioner have such further or other relief as to the Court may seem just and proper. NOTICE OF MOTION TO REMIT PENALTY. SURROGATES' COUET — County. In the Matter of the Transfer Tax Upon the Estate of Deceased. Please take notice that on all the papers and proceedings herein and on the affidavit herewith served of A. B., (executor or administrator of , deceased) , verified on the day of , I will apply to the Surrogate of the County of , at a Surrogate's Court (or at Chambers of the Surrogate) to be held in said county in on the day of , at 10 :30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order remit- ting the penalty of 10% upon the tax heretofore fixed upon the estate of the above-named decedent, by order of the Surrogate of said County made and entered the day of , to interest at the rate of 6 % per annum from the date of the accrual of the said tax, to wit: the date of the death of the said decedent, which occurred on the day of , until the date of the payment of said tax, provided said payment be made within days after the entry of the order of the said Surrogate to be made upon this application. Dated, the day of To Hon Comptroller of the State of New York (or Hon. , County Treasurer of the County of )■ 252 Poems. Order remitting penalty. ORDER REMITTING PENALTY. At a Surrogate's Court held in and for the County of , at the County Court House, in the of , on the day of , 190.. Present : Hon , Surrogate. In the Matter of the Transfer Tax Upon the Estate of Deceased. Upon reading and filing the petition of , duly verified on the day of , wherein it appears that payment of the transfer tax as heretofore fixed has been unavoidably delayed and good cause having been shown for such nonpayment and due notice of motion having been given to , Esq., attorney for the State Comp- troller, now on motion of , Esq., attorney for the petitioner herein, it is Ordered and adjudged that the penalty of 10% upon said tax be remitted and that interest be charged thereupon at the rate of 6% from the date of accrual of said tax, to wit: the day of , , the date of death of said decedent, to the date of payment thereof, provided that pay- ment be made within days after the entry of this order. Forms. 253 Petition for order fixing tax without appraiser. PETITION FOE ORDER FIXING TAX WITHOUT APPOINT- MENT OF APPRAISER. SUKKOGATE'S COUET — County of In the Mattee op the Transfer Tax Upon the Estate of Deceased. To the Surrogate's Court of the County of : The petition of respectfully shows that he re- sides at , in the of That said decedent died on the day of , , and that at the time of h . . death was a resident of That said decedent left a last will and testament, which was duly admitted to probate by the Court of , , and letters testamentary were duly issued to deponent, , who has duly qualified and is now acting as such. That hereto annexed and marked Schedule "A" is a list of all the property, real or personal, of which said decedent died seized and possessed, including any interest accrued thereon at date of death. That hereto annexed and marked Schedule "B" and made a part hereof is an itemized list of all the debts of said decedent which were due and owing at the time of death, funeral and administration expenses, and commissions of the executor. That hereto annexed and marked Schedule " C " is a true copy of the last will and testament of said decedent. That hereto annexed and marked Schedule " D " is a list of the beneficiaries under the last will and testament, with their addresses and the share of the estate received by them. That all the parties in interest, namely, those persons men- tioned in Schedule " D," are alive, of full age and sound mind, except : 254 Fokms. Petition for order fixing tax without appraiser. Your petitioner therefore prays that said Surrogate appraise the value of said decedent's estate and fix the amount of tax assessable thereon without the appointment of an appraiser. Note. In addition to the averments in said petition it should be stated specifically whether decedent died possessed of any silver- ware, jewelry, household furniture, personal effects, statuary, works of art, paintings, pictures, books, bric-a-brac, mortgages, promissory notes or any interest therein, any claims or unlisted securities which are alleged to be less than their face value, any real estate in the State of New York. If there is a life estate, give name and age of life tenant and name of remainderman." State whether decedent made any transfer or conveyance of real or personal property prior to death in contemplation of death or intended to take effect at or after death; if so, what property and of what value. State whether deponent has made diligent search for property of every kind, nature and description left by decedent and that . .he has been able to discover only that men- tioned in h . . . affidavit, and that he verily believes that decedent left no property, either real or personal, except that set forth in the petition. State whether decedent had any life insurance; any interest in any business or interest in any other estate; whether any reversion fell in by reason of said decedent's death ; whether decedent had any interest in any copartnership or any business and the value thereof. State whether decedent was given power of disposition of property by the will of another. FOEMS. 255 Order fixing tax where no appraiser appointed. ORDER FIXING TAX WHERE NO APPRAISER IS APPOINTED. At a Surrogate's Court, held in and for the County of ., at the. County Court House, in the of , on the day of , 190.. Present : Hon , Surrogate. In the Matter or the Transfer Tax Upon the Estate .op Deceased. J Upon reading and filing the petition of , duly verified on the day of , , wherein it appears that said decedent died on the day of , , and due notice of motion having been given to , Esq., attorney for the State Comptroller, on mo- tion of , Esq., attorney for the petitioner, it is Ordered and adjudged that the cash value of the property referred to in said petition, the transfer of which is subject to the tax imposed by the act relating to taxable transfers of prop- erty and the tax to which said transfers are liable is as follows : beneficiary. Cash value of interest. Tax assessed thereon. 256 Forms. Petition to declare estate exempt. PETITION TO DECLARE ESTATE EXEMPT. SUKKOGATE'S COUET — County of In the Matter of the Transfer Tax Upon the Estate of Deceased. To the Surrogate's Court of the County of ; The petition of respectfully shows that . . he re- sides at , in the of That said decedent died on the day of , , and that at the time of h . . death was a resident of That said decedent left a last will and testament, which was duly admitted to probate by the Court of , , and letters testamentary were duly issued to de- ponent, , who has duly qualified and is now acting as such. That hereto annexed and marked Schedule "A" is a list of all the property, real or personal, of which said decedent died seized or possessed, including any interest accrued thereon at date of death. That hereto annexed and marked Schedule " B " and made a part hereof is an itemized list of all the debts of said decedent which were due and owing at the time of death, funeral and administration expenses, and commissions of the executor. That hereto annexed and marked Schedule " C " is a true copy of the last will and testament of said decedent. That hereto annexed and marked Schedule " D " is a list of the beneficiaries under the last will and testament, with their addresses and the share of the estate received by them. That all the parties in interest, namely, those persons men- tioned in Schedule " D " are alive, of full age and sound mind, except : Forms. 257 Order exempting estate. Your petitioner therefore prays the Surrogate to enter an order herein exempting from tax under the act in relation to taxable transfers of property the property referred to in this petition. (See note attached to "petition for order fixing tax without appointment of appraiser" for further averments.) ORDER EXEMPTING ESTATE. At a Surrogate's Court, held in and for the County of , at the County Court House, in the ..i of , on the day of , 190.. Present : Hon , Surrogate. In the Matter of the Transfer Tax Upon the Estate of Deceased. Upon reading and filing the petition of , duly verified on the day of , , wherein it appears that the transfer of the property of said decedent is not subject to tax under the act relating to taxable transfers of prop- erty, and upon due notice of motion having been given to , Esq., attorney for the State Comptroller, now on motion of , Esq., attorney for the petitioner herein, it is Ordered and adjudged that the transfer of property of which said decedent died seized and possessed and referred to in said petition is exempt from tax under the act in relation to taxable transfers of property. 17 258 Forms. Order remitting report; composition agreement. ORDER REMITTING REPORT TO APPRAISER. At a Surrogate's Court, held in and for the County of „ at the County Court House, in the . .1 of , on the day of , 190.. Present : Hon , Surrogate. In the Matter of the Transfer Tax Upon the Estate of Deceased. Upon reading and filing the annexed consent of , Esq., attorney for the State Comptroller, and , Esq., attorney for the , and upon the affidavit of , dated the day of , , it is Ordered and adjudged that the report of the appraiser duly filed herein on the day of , , be re- mitted to him for further consideration and report as to ....... COMPOSITION AGREEMENT. SUHKOGATES' COUET — County. In the Matter of the Appraisal under the Act in Relation to Tax- able Transfers of Property of the Estate of Deceased. Whereas it appears from the report in the above-entitled proceeding of , Esq., the appraiser duly appointed Forms. 250 Composition agreement. herein to appraise the property of the said , late of , deceased, which report bears date the day of , , with reference to certain interests in remainder created by the last will and testament of decedent in the following terms : Whereas it further appears by said report that "As it is im- possible now to determine to whom the aforesaid remainders after the foregoing life estates will eventually pass on the death of the life tenants, the same are not at present taxable " and that the State Superintendent of Insurance has ascertained and deter- mined the aggregate value of the said remainder interests to be $ , and W hereas ( , ) the executor of the said estate, is desirous of personally settling all claims of the people of the State of New York, upon, or in respect to said property and estate, or any part thereof, for any transfer tax which may now be due and payable or which may hereafter become payable un- der the Laws of the State of New York and of compounding all such taxes payable upon said remainder interests, upon terms which are equitable and expedient as by law in that case made and provided. Now therefore it is hereby stipulated and agreed upon the facts and circumstances aforesaid, and in consideration of the premises, that the transfer tax payable in respect to said re- mainders be and the same hereby is ascertained, fixed, com- pounded and adjusted at the sum of $ , which sum shall be accepted by the Honorable , as Comptroller of the State of New York, by and with the approval of the Honorable , Attorney-General of the State of New York, in full payment, satisfaction and discharge of all transfer taxes which are payable, or which but for this agreement may at any time hereafter become due and payable to the State of New York, under or by virtue of the Laws of the State of New York, upon, or in respect to the property and estate of , deceased, or any part thereof, or upon and in respect to any and all interests therein, or in respect to the transfer thereof or by virtue of the said Will. In witness whereof the said , executor of the estate of , deceased, and Hon , Comp- troller of the State of New York, have signed and acknowledged 260 Forms. Waivers of notice under section 228. these presents in triplicate on the day of one thousand nine hundred and Approved. Attorney-General. State of ,\ County of I" ss ' " On this day of , one thousand nine hun- dred and , before me personally came , to me known and known to me to be the executor of the estate of , deceased, and who executed the foregoing in- strument and he thereupon duly acknowledged to me that he executed the same. State of New York, I County of , i ss ' : On this day of , one thousand nine hun- dred and , before me personally came, Hon , to me known and known to me to be the Comptroller of the State of New York, and who executed the foregoing instrument and he thereupon duly acknowledged to me that he executed the same. WAIVERS OF NOTICE UNDER SECTION 228. Dear Sirs: — Re Estate of The Comptroller of the State of New York hereby waives the issuance of the ten days' notice, required by Section 238 of the Taxable Transfers Law, for the opening of the safe deposit box in your custody belonging to this estate, and further consents to the transfer of any securities, or other property found therein, to the representatives of said decedent. Very truly yours, Attorney for State 'Comptroller. Dear Sirs: — Be Estate of The Comptroller of the State of New York hereby waives the issuance of the ten days' notice, required by Section 228 of the Taxable Transfers Law, and further consents to the transfer, by Forms. 261 Affidavits for appraisal of nonresident estates. you, to the representatives of this estate, of the following per- sonal property, now standing on your books in the name of decedent : Very truly yours. • ...■ , Attorney for State Comptroller. AFFIDAVITS FOE APPRAISAL OF NONRESIDENT ESTATES. SURROGATE'S COURT — County. In the Matter op the Transfer Tax Upon the Estate of Deceased. State of ....,) County of f , being duly sworn, deposes and says : I. That . . he resides at II. That said decedent died on the day of , 190.., intestate, and that thereafter deponent was appointed administra ... by the Court of the County of , State of , on the day of , 190. . III. That deponent duly qualified and is now acting as ad- ministra .... of this estate. IV. That hereto annexed and made a part hereof is an item- ized statement marked "A", of all the property, real and per- sonal, of which said decedent died seized and possessed, situated within the State of New York, and an itemized statement, marked " B ", of all the personal property situated without the State of New York. V. That at the time of h... death, decedent had no safe deposit box, no bonds, public or private, no mortgages and no money within the State of New York ; . . he had no interest in any business or copartnership carried on therein; . .he owned 262 FOKMS. Affidavits for appraisal of nonresident estates. no shares of stock in National banks situated therein and owned no shares of stock in corporations organized and existing under the laws of the State of New York; . .he owned no jewelry > horses, carriages or furniture; and was possessed of no other personal property of any kind whatsoever in said state except as set forth in said schedule "A ". VI. That the decedent at the time of h. . death owned no real estate situated within the State of New York. VII. That prior to h . . death, decedent made no transfer of property in the State of New York by deed, grant, bargain, sale, or gift in contemplation of death or intended to take effect at or after death; that the decedent had no power of appointment over property, real or personal, located therein. VIII. That the fair market value of the entire personal estate of said decedent at the time of h . . death wheresoever situated, was the sum of $ That the funeral expenses of said decedent amounted to the sum of $ That the debts itemized in a statement hereto annexed, marked " C ", due and owing by decedent at the time of h . . death, exclusive of funeral expenses, mortgages on real estate, inheritance taxes paid to the United States Government or to any Foreign or State Government or loans secured by collateral, amount to the sum of $ That the administration expenses incurred, and to be in- curred, exclusive of expenses in the preceding paragraphs amount to the sum of $ That the commissions allowed me as administra . . . amount to the sum of $ IX. That all the parties in interest are alive, of full age and sound mind, unless otherwise stated in the following paragraph : X. That all the persons who are entitled to share in the estate of said decedent, their addresses, ages, the amount of their shares and their relationship to decedent, are as follows : NAME AND RELATIONSHIP. Age. Address. Share (per cent.) Sworn to before me, this day of 190. (Attach County Clerk's certificate.) Forms. 26E Affidavits for appraisal of nonresident estates. SURROGATE'S COURT — County. In the Matter of the Transfer Tax Upon the Estate of Deceased. State of , I . County of , f , being duly sworn, deposes and says : I. That . . he resides at II. That said decedent died on the day of , , a resident of , State of , leaving a last will and testament, which was duly admitted to probate by the , State of , on the day of III. That deponent was appointed s °^ executor of said will, has duly qualified and is now acting as such executor. IV. That hereto annexed and made a part hereof is an item- ized statement marked "A", of all the property, real and per- sonal, of which said decedent died seized and. possessed, situated within the State of New York, and an itemized statement, marked " B ", of all the personal property situated without the State of New York. V. That at the time of his death, decedent had no safe deposit box, no bonds, public or private, no mortgages and no money within the State of New York; he had no interest in any busi- ness or copartnership carried on therein; he owned no shares of stock in national banks situated therein and owned no shares of stock in corporations organized and existing under the laws of the State of New York; he owned no jewelry, horses, car- riages or furniture; and was possessed of no other personal prop- erty of any kind whatsoever in said State except as set forth in said schedule "A". VI. That the decedent at the time of his death owned no real estate situated within the State of New York. VII. That prior to his death, decedent made no transfer of property in the State of New York by deed, grant, bargain, sale or gift in contemplation of death, or intended to take effect at or 264 Foems. Affidavits of appraisal; memorandum of New York county. after death; that decedent had no power of appointment over property, real or personal, located therein. VIII. That the fair market value of the entire personal estate of said decedent at the time of his death wheresoever situated was the sum of $ That the funeral expenses of said decedent amounted to the sum of $ That the debts itemized in a statement hereto annexed, marked " C ", due and owing by decedent at the time of his death, ex- elusive of funeral expenses, mortgages on real estate, inheritance taxes paid to the United States Government, or to any Foreign or State Government, or loans secured by collateral, amount to the sum of $ That the administration expenses incurred and to be incurred, exclusive of expenses in the preceding paragraphs, amount to the sum of $ That the commissions allowed me as executor amount to the sum of $ IX. That annexed hereto, marked schedule " D " and made a part hereof is a true copy of said decedent's last will and testament. X. That all the parties in interest are alive, of full age and sound mind, unless otherwise stated in the following paragraph. XI Sworn to before me, this I day of 190.. I ) ? (Attach County Clerk's certificate.) MEMORANDUM USED BY APPRAISERS OF NEW YORK COUNTY FOR PREPARATION OF AFFIDAVITS. In appraisal proceedings, affidavits should embody the follow- ing facts, and should state each in detail : 1. Date of death. 2. Eesidence at time of death. 3. Did decedent leave a will? If so, annex a certified copy, or swear that the annexed is a true copy. Also state when and where said will was probated, and date when letters were issued, and to whom. 4. Name and address of executors or administrators. Forms. 265 Affidavits of appraisal; memorandum of New York county. 5. Personal property itemized, setting forth par and market value of each item at date of decedent's death, and how the value thereof was ascertained. State specifically whether decedent died possessed of any silver- ware, jewelry, household furniture, personal effects, statuary, works of art, paintings, pictures, books, bric-a-brac, etc., If assets include stocks or bonds, state details, as per example : 100 shares Erie E. B. common stock, par value 100, 12| $1,275 00 100 shares Erie E. E. preferred stock, par value 100, 37f 3,775 00 100 shares Erie E. E. 2d preferred stock, par value 100, at 19£ 1,950 00 One $1,000 bond Chicago & Northwestern, con- solidated, 7's, due 1915, at 137£ 1,375 00 One $1,000 bond Chicago & Northwestern, gold, 7's, due 1902, at 109 1,090 00 One $1,000 bond Chicago & Northwestern Ex- tension, 4's, due 1926, at 108£ 1,085 00 One $1,000 bond Chicago & Northwestern Sinking Fund, 6's, due 1929, at 118 1,180 00 In addition, if securities are unlisted, state capitalization, kind of business, itemized statement as to assets, values thereof, item- ized statement of liabilities, dividends paid, and date of matur- ity, with such other facts as may be pertinent, affecting their value, as of date of decedent's death. State whether decedent died possessed of mortgages or promis- sory notes or had any interest accrued thereon and unpaid at date of decedent's death. State whether there are any claims or unlisted securities which are alleged to be of less than their face value, and state particularly, and in detail, the reasons for their depreciation. State whether decedent left any real estate in the State of New York. If same is taxable, describe it in detail, with street and number, City and County; give its full value and assessed value, and furnish an appraisal thereof by a competent real estate expert. State relationship of decedent to beneficiaries. State exemptions claimed and itemize same. If there is a life estate, give name and age of life tenant, and name of remainderman. State whether any party in interest be*dead; whether he died before or after the decedent, and give name of his survivors if they are interested. 266 Fokms. Memorandum used in New York county for affidavits of appraisal. State whether decedent made any transfer or conveyance of real or personal property prior to death, in contemplation of death, to take effect at or after death. If yes, what property, and of what value. State whether deponent has made diligent search for prop- erty of every kind, nature and description, left by the decedent, and that he has been able to discover only that mentioned in his affidavit, and that he verily believes that decedent left no property, either real or personal, except that set forth in his affidavit. If debts and funeral expenses are requested to be deducted, itemize the same and state whether said debts were due and owing at the date of death of the decedent, and have been paid or will be paid. Kindly file a statement of the amount of each legacy and dis- tributive share, with the names of the beneficiaries. State whether all parties in interest are of full age and of sound mind, and if there are infants, state their names and whether they are under or over fourteen years of age. State whether decedent had any life insurance, interest in any business, or in any estate, and if so, state the same fully and in detail. State whether any reversion fell in by reason of decedent's death. If decedent left any interest in any copartnership or any business, state fully, in itemized form, the assets of the same and the liabilities thereof, as shown by the books for several years preceding his death. If the decedent be a nonresident, state, in itemized form, the value of the personal and real property within the State of New York, and if the decedent owned any shares of stock of corporations of the State of New York and the gross value of the entire personal estate wherever situated. State whether the decedent was a member of any Exchange. State whether decedent was given power of disposition of property by the will of another. Forms. 261 District attorney proceedings; petition for citation. FORMS IN DISTRICT ATTORNEY PROCEEDINGS. PETITION FOR CITATION. SUBKOGATE'S COIJET — County. In the Matter of the Transfer Tax Upon the Estate of Deceased. To the Surrogate's Court of the County of : The petition of of the City of re- spectfully shows: I. That your petitioner is the District Attorney of the County of Your petitioner further alleges upon information and belief: II. That on or about the day of , at the City of , died and was at the time of death a resident of the of and County of III." (State status of transfer tax proceeding had, if any.) IV. The said decedent died seized or possessed of property within this State, or subject to its laws, the value of which ex- ceeded the sum of V. That upon h. . death certain of the property of said de- cedent thereupon passed to VI. That the property so passing, or some part thereof, is subject to taxation under Chapter 908 of the Laws of 1896, and the acts amendatory thereof and supplemental thereto. VII. Your petitioner further shows that the Comptroller of the State of New York has notified your petitioner in writing of the refusal or neglect of the persons liable therefor to pay the said tax, and that no part of said tax has been paid, and your petitioner has probable cause to believe that the same still remains due and unpaid. Wherefore your petitioner prays that a citation issue herein to citing to appear before this Court on a day to be designated therein, and show cause why the tax under the act 268 Forms. . District attorney proceedings; order for citation. aforesaid should not be paid, and said property be appraised if necessary for that purpose. Dated the day of District Attorney of the County of State of New York, ) r SS County of , J , being duly sworn, says that he has read the fore- going petition and knows the contents thereof, and that the same is true to the knowledge of deponent, 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 i day of f Notary Public, County. ORDER TOR CITATION. At a Surrogate's Court, held in and for the County of , at the Surrogate's Office in the County of , on the day of , 190.. Present : Hon , Surrogate. In the Matter of the Transfer Tax Upon the Estate of Deceased. On reading and filing the petition of , District Attorney of the County of , verified the day of , 190. ., it is Oedered that a Citation issue herein in accordance with the prayer of said petition. Surrogate. Forms. 269 District attorney proceedings; citation. CITATION. The People of the State of New York, By the grace of God, free and independent, to 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 of said County, held at the County Court House in the County of on the day of , 190 . ., at half-past ten o'clock in the forenoon of that day, then and there to show cause why the transfer tax provided for by Chapter 908 of the Laws of 1896 of the State of New York and the acts amendatory thereof and supplementary thereto should not be paid on property passing upon the death of and why such property should not be appraised according to law, if necessary for that purpose. And such of you hereby cited 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. In testimony whereof, we have caused the Seal of the Sur- rogate's Court of the County of to be hereunto affixed. Witness, Hon Surrogate of our said County at the City of , the ....... day of , in the year of our Lord one thousand nine hundred and Cleric of the Surrogate's Court. 270 Forms. District attorney proceedings; order appointing appraiser. ORDER APPOINTING APPRAISER. At a Surrogate's Court, held in and for the County of , at the Surrogate's Office in the County of , on the day of , 190.. Present : Hon , Surrogate. In the Matter of the Transfer Tax Upon the Estate of Deceased. On reading and filing the petition of , District Attorney of the County of , and the order for and citation issued thereon, with due proof of service thereof and on the return day thereof the said proceeding having been marked for an order designating an Appraiser, I do hereby, pursuant to the requirement of Chapter 658 of the Laws of 1900, direct to fix the fair market value at the time of the transfer of the property which was of the above-nameJ decedent and which is subject to the payment of any tax imposed by Article X, Chapter 908, Laws of 1896, and the Acts amendatory thereof and supplemental thereto. Surrogate. Forms. 271 District attorney proceedings; decree fixing tax, etc. DECREE FIXING TAX, DIRECTING PAYMENT, ETC. At a Surrogate's Court, held in and for the County of , at the County Court House, in the of , on the day of , 190.. Present : Hon , Surrogate. In the Matter op the Transfer Tax Upon the Estate op Deceased. Upon reading and filing the report of , Esq., the appraiser herein, and after hearing , on behalf of Hon , District Attorney, in support of said report, and , of counsel for the herein, in opposition, it is Ordered: 1st — That the cash value of the property re- ferred to in said report, which is subject to the tax imposed by the Act. relating to taxable transfers, and the tax to which the said transfers are liable, is as follows: BENEFICIARY. Cash value of interest. Tax assessed thereon. 2d — That the herein, make pay- ment to the Comptroller of the State of New York of the sum of , $ being the amount of the tax upon the interest of said together with interest upon each of said sums, respectively, at the rate of per centum per annum, from the day of , 190. ., to the date of payment. And it is further ordered, That said pay to Hon District Attorney, the sum of dollars, as and for his costs and disbursements herein. INDICES. PART I. ACT OF 1885 275 PART II. ACT OF 1892 279 PART III. ACT OF 1896 285 PART IV. FORflS 303 index-Part i. ACT OF 1885 AND AMENDMENTS. Act: Page, amendment of 1887, taxing nonresidents and exempting adopted children, etc 5 amendment of 1891, taxing lineals, etc 6 amendment of 1892, exempting bishops and religious corpora- tions 8 chap. 483, Laws 1885, with amendments to May 1, 1892 1-48 construction of 10 history of 1—4 original act of 1885, applicable only to residents 4 when in effect 1 Administrators : collection of tax by 29 Adopted children: act relative to 5 when exempt 20 Appeals 35, 40 Application of tax 47 Application of amendment of 1887 47 Appraisals 34-37 Appraisers: fees of 35 unlawful acts of 41 Books: to be furnished by state comptroller 45 Collection of tax: by executors and administrators 29 sale of property to pay tax 30 County clerk: notice by 44 [275] 276 Index — Act of 1885. County treasurer: Page. fees of 4g receipt from 40 report of 45) 46 Deferred payments: amendment of 1887 25 original act of 1885 24 Discount, interest, penalty: interest under act of 1885 28 interest under act of 1887 28 relief from penalty 28, 29 when entitled to discount 27 when interest or penalty attaches 28 Executors: bequest or devise to, in lieu of commissions 26 collection of tax by 29 notice to county treasurer or comptroller by 31 Exemptions: adopted children, when exempt 20 corporations and institutions 21, 24 exempted persons 19 lineals and near relatives 19 $500 exemption considered 12 Forms: see page 233 Future and contingent interests: application of act to 15 property passing under power of appointment 17 when appraised and taxable 16 when deemed transferred 17 Liability: interest passing determines 11 of corporations to pay tax 32 of executors and administrators 29 Nonresidents: appropriation of property without state to pay specific legacies. 19 bank account in state, taxable 18 bonds of domestic corporation within state, taxable 18 debts due from resident, not taxable 18 mortgage in state, taxable 18 Index — Act op 1885. 277 Nonresidents — (Continued): Page. not taxable under original act 17 personal property, kept or invested in state, taxable 18 real property in state necessary 17 right to legacy, not taxable 18 stock of foreign corporation, not taxable 18 taxable under act of 1887 17 Notice: by surrogate and county clerk to treasurer, etc 44 to county treasurer or comptroller by executor, etc 31 Payment: appraisers' fees 31 deferred 24, 25 of tax 30 proceedings by district attorney to enforce 43 proceedings by surrogate to enforce 42 to state treasurer 45 Property or interests not taxable: a bequest for burial lot 15 a bequest to settle account 14 a bequest to pay debits proved 14 bequest impressed with trust 14 increase after death 45 legacy for home during life 14 real estate without state 14 undistributed share of resident in nonresident's estate 11 Property or interests taxable: bequest for masses 14 equity in mortgaged lands 13 good-will of business 13 insurance policy of resident 13 interest in realty of a joint-stock association 13 judgment against heir or legatee 13 legacy to United States 14 note of legatee included in residue 13 property of resident 12 stocks of foreign corporation owned by resident 13 United States bonds 13 Reappraisals : application for 40 Receipts: for payment of tax 30 to be filed, etc 30 278 Index — Act of 1885. Refunds: Pa s e - statute relative to 32, 33 Surrogate: jurisdiction of 41 notice to treasurer 44 proceedings to enforce payment 42 Tax: is on succession \\ INDEX— Part II. ACT OF 189a AND AMENDMENTS. Act: Page. constitutionality 52 construction of 53, 103 history of 49-50 not retroactive 52 when in effect 104 Administrators : collection of tax by, etc 74 personal liability for tax 74 Adopted children: when exempt 69 when taxable 69 Appeals 89, 92 Appraisal: future and contingent interests 61 in general 82, 83 notice of 82, 83 of future interests 81, 82 of securities 85 of uncertain claims 87 property passing under power of appointment 62, 63 Appraiser: appointment of 81, 82 compensation of 83 fees of • 83 proceedings by 82 report of 87 time of appointment 82 Books: to be furnished by state comptroller . .■ 99 Collection of tax: by executors or administrators 74 proceedings for 95 Comptroller: fees of 98 report of 101 [279] 280 Index — Act of 1892. County clerk: Page, report by 100 County treasurer: fees of 98 report by 101 Deductions: what allowed 85, 86 what not allowed 86 Deferred payments: bond to be given 77 generally 77 Discount: when entitled to 73 District attorney: assistants to 93 costs allowed to 96 proceedings by 95 Executors : collection of tax by 74 personal liability for tax 74 Exemptions: adopted children 69 bishops and religious corporations 68, 69 generally 68, 69 lineal descendants 68 of corporations and institutions 67 test of 55 Estate: definition of 101 Fees: of comptroller 98 of county treasurer 98 Forms: see page 233 Future and contingent interests: application of act 61 how valued 64 property passing under power of appointment 62, 63 remainders created prior to act, not taxable 62 time of transfer of 64 when appraised and taxable 61 Index — Act of 1892. 281 Interest: Page. rate of 73 when to be charged 73 Jurisdiction: ancillary letters unnecessary to confer, on surrogate 80 surrogate has general 79 where property in more than one county 81 Laws repealed 103, 104 Liability: of corporations 78 of executors and administrators 74 Lineal descendants, ,etc: when property transferred to, taxable 68 Mutually acknowledged relation of parent and child 69 considered 69 Nonresidents: application of act to 64 appropriation of property without state to pay specific legacies . 67 nontaxable transfers by - 66 taxable transfers by 65 taxation in state of residence does not relieve 67 test of what constitutes property within state 67 where nonresident owns stock in domestic corporation 80 where property in more than one county 81 Order: modification of, by surrogate 91 Penalty: rate of 73 relief from .,' 73 when to be charged 73 Property: defined 101 Property or interests not taxable: bequest for burial lot 59 bequest with precatory words in favor of exempt corporation. . 58 equitable conversion of realty 58 increase of interest after death 59 interest vesting before transfer act 58 legacy for home during life 59 real estate without state 58 undistributed share of resident in nonresident's estate 58 United States- bonds 58, 102 282 Index — Act of 1892. Property or interests taxable: Paj,e. application of act 55 bequest for masses 57 devises and bequests in lieu of commissions 98 equity in mortgaged lands 56 future or contingent interests 61 good-will of business 56 legacies for services 57 legacies to United States 57 life insurance policies 56 interest in realty of joint-stock association 56 interest in fund in partition action 57 judgment against heir or legatee 56 note of legatee in residue 56 partnership agreement 57 property of nonresidents 64 property of residents 56 seat in stock exchange 57 stocks of foreign corporations owned by resident 56 Reappraisals: by justice of supreme court 89 generally 93 Receipts: by whom given 71 to be countersigned by state comptroller 71 where filed 71 Refunds: generally 75 Reports: by county clerks 100 by county treasurer t J01 by surrogate 100 to state comptroller 101 Saving clause 103 State comptroller: books to be furnished by 99 forms to be furnished by 99 reports to 101 Surrogate: ancillary letters unnecessary to confer jurisdiction on 80 assessment of tax by 88 assistants to 93 determination by 88 Index — Act of 1892. 283 Surrogate — (Continued) : Page. is taxing officer 80 jurisdiction of 79 may modify order 91 notice by 89 powers of .• 80 report of 100 Tax: amount of estate determines liability to 54 application of 101 basis of 54 collection of 74 is on succession 54 lien of 71 payment of 71 rate of 52 receipts for payment of 98 Taxable transfers: denned 51, 101 Transfer: denned 53, 102 time of 04 Transfers: in contemplation of death 59 to take effect at or after death 59 INDEX- Part III ACT OF 1896 AND AMENDMENTS. Act of 1896: Page, amendments as to future and contingent interests, con- sidered 137-140 application of ; 121 application of, to nonresidents 131 constitutional 110 construction of, in favor of citizen 117 conflict in law as to appraisal of property passing on exercise of power of appointment 149 history of act and amendments 105-112 subd. 3, § 220, not retroactive 127 when in effect 113 when retroactive 116 Administration : expenses of, to be deducted 203 Administrators : collection of tax by, § 224 165 commissions of foreign, to be deducted 204 credit on accounting may be refused if receipt for tax is not produced , 163 disbursements of, to be deducted 204 liable for tax, § 222 161 must testify on appraisal 199 Adopted children: adults not included since March 21, 1898 159 children of, not included in exemption 1.59 relation of, how established 158 transfers to, when taxable, § 221 156 Albany county: salaried appraiser ; compensation, § 230 189 transfer tax clerk in, § 234 220 Amendments: history of 105-112 Ancillary letters: comptroller or county treasurer to be cited, § 229 174 petition for, what to contain, § 229 174, 175 [285] 286 Index — Act of 1896. Annuity: Page, trust fund to pay, not taxable 126 Ante-nuptial agreement:. property transferred by, not taxable 131 Appeals: allowance of costs on, in discretion of surrogate 218 from determination of surrogate, § 232 209 from orders of surrogates 215-217 to court of appeals 217 Appointment: See Power of Appointment. Appraisal: appraiser not to rely on counsel 207 commission to take evidence on 200 competency of witnesses on 199 deductions allowable on 203-205 burial lot 203 commissions of foreign executor 204 commissions of trustees 204 costs of action by executor 204 debts due New York creditor by nonresident decedent .... 204 disbursements of executor 204 executor's commission as trustee 203 expenses of administration 203 funeral expenses 203 taxes, when 204 value of particular estate 205 worthless account 204 deductions not allowable on 205, 206 abandoned debts 206 certain debts owed by nonresident 206 expenses of repairs to realty 206 expense of unnecessary action 205 legacy tax paid elsewhere 205 money paid to withdraw objections to will 205 mortgage debts 206 taxes not a lien 205 war revenue tax 205 will contest, expenses 205 executor must testify on 199 evidence on, as to debts 200 fees of witnesses in, § ■ 231 198 future or contingent interests to be appraised at full value, § 230 193 increase of benefit, where estate is determinable by death, § 23p. 192 Index — Act of 1806. 287 Appraisal — (Continued) : Page. immediate, of future and contingent estates, § 230 192 no allowance to be made on account of contingent incumbrance § 230 .' i 91 notice of, § 231 197, 199 of claim compromised by executor 203 of life interest in trust fund, omitted by appraiser 202 of notes directed to be canceled 203 of securities, Laws 1891, chap. 34, and decisions 200-202 of trust estate, with remainders 202 property to be appraised at fair market value, § 231 198 reappraisal, on application to supreme count by state comp- troller, § 232 210-217 report of appraiser 207, 208 reservation of right to tax uncertain claims 208 stock valuation, how determined on 201 superintendent of insurance to appraise value of contingent, etc., interests, § 232 209 surrogate may order further appraisal 207 time of, § 230 191 valuation of future and contingent interests on 144, 145 value of property at time of transfer to be determined on. . . . 200 when future and contingent interests are to be appraised. . 141-143 where estate is partly exempt 202 where property is in more than one county 199 See Appraisers; Tax; Surrogate; Future and Contingent Interests; Power of Appointment. Appraisers : act of 1901, requiring county treasurers to act as appraisers, constitutional 194-195 appointed by supreme court on reappraisal, § 232 210 compensation of, § 232 210 report of, § 232 210 appointment of salaried, in certain counties, § 230 189 commission to take evidence for use of 200 compensation of, under former law, § 231 198 compensation, where salaried, § 230 189 county treasurer to act as appraiser, where salaried appraiser is not appointed, § 230 190 duties of, on reappraisal 218 expenses of, payment, § 231 198 may hear evidence as to debts 200 must take evidence of mutually -acknowledged relation 158 oath and bond of salaried, § 230 190 on order of surrogate, to fix fair market value of property tax- able, § 230 190 288 Index — Act of 1896. Appraisers — (Continued) : Page. proceedings by, § 231 197 report of 198, 207 conclusiveness of 208 filing of, § 232 209 reservation in, of right to tax 208 surrogate may remit 207 to be made in duplicate, § 232 209 what to contain 207 should only be appointed in taxable estates 195 surrogate may appoint, on own motion or application of in- terested party 195 taking unlawful fee or reward 208 time of appointment of, in discretion of surrogate 196 to appraise and report, § 231 198 to give notice of appraisal, § 231 197 See Appraisal; Tax; Surrogate; Future and Contingent Interests; Power of Appointment. Bank: liability of, to tax, § 228 171 Bank deposits: within state of nonresident, taxable 134 Bible societies: exempt as religious corporations, § 221 155 Bishops: exemption of, § 221 -56 applies to nonresident 160 archbishop or cardinal bishop included 160 bequest to bishop " or living successor " 160 Bond: of salaried appraiser; amount; where filed, § 230 190 to defer payment of tax, § 226 169 Bonds: of domestic corporation; owned by nonresident and not within state at death, not taxable 135 pledged by nonresident, not taxable 135 of foreign or domestic corporation within state owned by non- resident, taxable 133 of United States within state and owned by nonresident, not taxable before' March 21, 1898 137 owned by nonresident, secured by mortgage on land in state, and in state at death, taxable 135 owned by nonresident, secured by mortgage on land in state, but not in state at death, not taxable 136 Books: to be furnished by state comptroller, § 238 225 Index — Act of 1896. 289 Burial lot: Page. bequest for, not taxable 125 cost of, to be deducted 203 Citation: in proceedings to collect tax, § 235 221 Commission: to take evidence on appraisal 200 Commissions: of trustees and executors to be deducted 203 Composition: where tax is not presently payable or interests are not as- certainable, § 230a 196 Compromise: of controversies as to relationship, § 235 222, 223 Comptroller: denned, § 242 230 See State Comptroller. Constitutionality : L. 1899, chap. 76, § 230, in part constitutional 143 Laws 1899, chap. 76, § 230, in part unconstitutional 141, 144 of statute requiring county treasurers to act as appraisers. . 195 of transfer tax legislation 116, 118 subd. 5, § 220, as to powers of appointment, constitutional .... 146 Construction: liberal, in favor of citizen 117 when statute may be construed retroactively 116 Corporations: amendment of 1901, limiting exemption to personal property other than money or securities, § 221 154, 155 exemption of, § 220 114, 115 exemption of 150-152 holding taxable securities to notify comptroller, § 228... . 171, 172 liability of certain, to tax, § 228 171 Costs: allowance of, on appeal, in discretion of surrogate 218 in proceedings to collect tax, § 235 221, 224 Counsel: compensation of, limited, § 235 222 may be retained by state comptroller, § 235 222 County clerk: quarterly report, § 239 226 19 290 Index — Act of 1896. County treasurer: Page. act requiring, to act as appraiser, constitutional 194-195 composition of tax by, in certain cases, § 230a 196 denned, § 242 230 fee of, for acting as appraiser, § 237 225 report of, in county where appraiser is not salaried, § 240. . . . 227 to act as appraiser where salaried appraiser is not appointed, § 230 190 Debts: due from resident to nonresident, not taxable 136 mortgage ; not to be deducted 206 Deductions: See Appraisal. Definitions: used in transfer tax law, § 242 229 Discount: allowed for prompt payment, § 223 163 Distributive share: in realty, taxable if not converted at death of legatee 124 District attorney: denned, § 242 230 duties of, in proceedings to collect tax, § 235 221 Dutchess county: salaried appraiser; compensation, § 230 189 transfer tax clerk in, § 234 220 Erie county: salaried appraiser; compensation, § 230 189 transfer tax clerk in, § 234 220 Executors: See Administrators. Equitable conversion: doctrine cannot be invoked to subject to tax or exempt .... 118 Estate: amount of, determines liability 120 denned, § 242 229 not taxable unless $500, § 220 114, 115 Estate for life: subject to be divested by act of legatee, how taxed, § 230. . 138, 198 Exemptions: before § 243 151 bible and tract societies, § 221 155, 156 Index — Act of 1896. 291 Exemptions — (Continued) : Page, doctrine of equitable conversion cannot be invoked to exempt. 118 estates of less than $10,000, passing to lineals, etc., exempt, § 221 156 in § 4 not applicable to transfer tax article, § 243 231 non-liability to general taxation does not exempt 120 of bishops and religious corporations, § 220 156, 160 of corporations under act of 1896, and its amendments 150-152 154, 155 of " husband of daughter," considered 157 test of 121 what estates are not subject to tax 120, 121 Fees: of county treasurer for acting as appraiser, § 237 225 Five hundred dollars: amount of estate — not of transfer — determines liability.... 120 estates amounting to, subject to tax, § 220 113, 115 Forms: See p. 233, for table of. Funeral expenses: to be deducted 203 Future and contingent interests: effect of Laws 1899, chap. 76, requiring immediate appraisal and taxation 143 history of legislation 137-140 immediate appraisal and taxation, § 230 192 law inapplicable to remainders created before transfer tax law. 140 Laws 1899, chap. 76, in part unconstitutional 141 payment of tax thereon 163 remainder appointable by life tenant, when taxable 143 successive amendments to law, considered 137-140 time of transfer of 140 to be appraised at full, undiminished value, § 230 193 transfer on exercise of power of appointment taxable as, prior to Laws 1897, chap. 284 145 valuation of 144, 191, 193 valuation of life estate subject to annuities 145 valuation of remainder in residue, subject to power of ap- pointment 145 value, how determined, § 230 ' 191 vesting before May 1, 1892, but not in possession, how taxed, § 230 193 when appraised and taxable prior to Laws 1899, chap. 76. . 141, 142 See Appraisal; Powers of Appointment. 292 Index — Act of 1896. Gifts causa mortis: Page. part of assets 121 taxable 127-129 Good=wi!l: transfer taxable 122 Gratuity fund: proceeds of, not taxable 126 Guardian: appointment of special, by surrogate, § 232 210 when not to be made '. 212 Infant: appointment of special guardian of, § 232 210 when not to be made r 212 Insurance policies: of domestic corporation owned by nonresident, not taxable. . . . 135 transfers by residents of, taxable 122 Interest: on tax on contingent remainder 164 when begins to run 164 when charged, § 223 163 Join t=s toe k association: interest in realty of, taxable on transfer 122 Judgment: against heir or legatee, taxable 122 Kings county: salaried appraisers ; compensation ; stenographer ; office ex- penses, § 230 189, 190 surrogate's assistants in, § 234 219 Leasehold interest: taxable 124 Lien: tax remains until paid, § 222 160-162 Life insurance policies: transfers by residents of, taxable 122 but not by nonresidents 135 Limitation: statute of, not to apply to transfer tax proceedings, § 282 231 Lineal descendants: means only direct descendants 157 Masses: bequest for, when taxable 123 Index — Act of 1896. 293 Modification: Page, of order by surrogate 213-215 Monroe county: salaried appraiser; compensation, § 230 189 transfer tax clerks in, § 234 220 Mortgaged lands: equity in; transfer of, taxable 122 Mutually acknowledged relation: amendment of 1898, requiring same to commence before child's * fifteenth birthday, § 221 153 how established 158 illustrative decisions 159 of parent and child, § 221 156 provision not limited to illegitimates 159 National bank: stock of, owned by nonresident, taxable 134 New York county: salaried appraisers; compensation; stenographers and office ex- penses, § 230 189, 190 surrogate's assistants in, § 233 218 Nonresidents: application of act to 131 appropriation of property of, to pay specific legacies 132 nontaxable transfers of 135-137 bonds of domestic corporation not within state at time of death 135 bonds secured by mortgage on real estate here, but kept without state 136 bonds of United States prior to March 21, 1898 137 debts due from a resident 136 debts due from domestic joint-stock association 136 insurance policies of domestic corporation 135 money temporarily here 135 property without state over which resident exercises power of appointment 136 property not removed before May 1, 1892 137 right to legacy from resident 136 stock of foreign corporations, although certificates are here 135 stock and bonds pledged, not redeemed 135 prior to May 1, 1892, real property in state necessary 131 taxation of, in state of residence does not relieve 132 transfers by, when taxable, § 220 114, 115 294 Index — Act of 1896. Nonresidents — (Continued) : Page. taxable transfers of . 133 bonds and stock of domestic corporation within state, though ancillary letters are not issued 133 bonds of foreign or domestic corporation within state at death 133 bonds within state, on lands therein 134, 135 deposit of money in state 134, 135 money in hands of attorney in state 134 money loaned to firm here 133 personalty kept or invested here 133 stock of domestic corporation, wherever kept 133 stock of domestic corporation in name of broker 133 stock of domestic corporation; subject to life estate .... 134 stock of national bank in this state 134 what constitutes residence 132 when law first applied to, June 25, 1887 131 See Appraisal; Tax; Nontaxable Transfers; Taxable Transfers. Nontaxable transfers: articles enumerated in Code, § 2713 126 bequest with precatory words of desire in favor of exempt corporation 125 bequest for burial lot 125 bequest impressed with trust for exempt person 125 by nonresidents 135 gifts inter vivos, not in contemplation of death . 129-131 legacy chargeable on realty 126 legacy for home during life 125 legacy to nonexisting corporation 126 proceeds of gratuity fund 126 property transferred by ante-nuptial agreement 131 real estate of resident without state 125 stock pledged, and not redeemed 126-135 trust fund to pay annuity created before death 126 undistributed share of resident in estate of nonresident 125 United States bonds prior to March 21, 1898 125 See Tax; Appraisal; Nonresidents; Exemptions; Future and Contingent Interests. Notice: corporations holding taxable securities to notify comptroller, § 228 : 171 of appraisal, § 231 197 of assessment of tax by surrogate, § 232 209 effect of failure to give ; . 212 presumption of 212 Index — Act of 1896. 295 Oath: Page of salaried appraiser, § 230 190 Oneida county: salaried appraiser; compensation, § 230 183 transfer tax clerk in, § 234 219 Onondaga county: salaried appraiser; compensation, § 230 189 transfer tax clerk in, § 234 219 Orange county: salaried appraiser; compensation, § 230 18p Order: modification of, by surrogate 213-215 Partnership: interest of partner in, taxable 123 Payment of tax: limitation of time as to 161 on future interests 163 proceedings to enforce, § 235 220-223 receipts from county treasurer and state comptroller, § 236. . 224 when due, § 222 160-162 when may be deferred by giving bond, § 226 169 Penalty: relief from 164 when charged, § 223 163 Power of appointment: condition of property at exercise of power determines taxability. 148 conflict in law as to ■. 149 law applies to powers created by will before transfer tax law. . 146 but does not apply to power so created by deed 147 law before Laws 1897, chap. 284, providing that transfer takes place on exercise of 145 Laws 1897, chap. 284, is constitutional 146 payment of debt in exercise of, taxable 149 property of nonresident without state over which resident ex- ercises, not taxable 136 reappraisal of remainders under, appraised under former law. . 149 relationship between donee and beneficiary determines rate of tax 148 remainder created by exercise of power, when taxable 148 surrogate having jurisdiction of property transferred by exer- cise of 149 tax on exercise of, is on- succession 147 taxability of transfer on failure to exercise 147 296 Index — Act of 1896. Power of appointment— (Continued): Page. taxation of transfers upon exercise of, § 220 115 transfers under, subject to tax before Laws 1897, chap. 284. . 145 what constitutes exercise of 147 when remainder appointable by life tenant is taxable, since Laws 1899, chap. 76 143 See also Future and Contingent Interests; Appraisal. Procedure: statute in force at date of proceeding, governs 117 Property: defined, § 242 229 Queens county: salaried appraiser; compensation, § 230 189 Rate: highest to be imposed which may be due in any contingency, § 230 192 of tax; transfers to collaterals, § 220 114, 116 where property is transferred by exercise of power of appoint- ment, relationship of donee and beneficiary determines 148 Real estate: amendment of 1903, subjecting to taxation transfers of, to lineals and near relatives, § 221 156 expense of repairs to, not to be deducted 206 of resident without state, not taxable 25 Reappraisal: by supreme court supersedes appraisal by surrogate, § 232 .... 211 comptroller may apply to supreme court for, § 232 210 when granted 217) Receipts: disposition of, § 222 161 for taxes to be given, § 222 161 from county treasurer and state comptroller, § 236 224 may be recorded, § 236 224 Refunds: remedy for, § 225, exclusive 169 when and how allowed, § 225 167-169 when application must be made for, § 225 167, 169 where excessive tax has been exacted and estate is subject to contingent incumbrance, § 230 191 where highest rate has been imposed, but less is due on happen- ing of contingency, § 230 192, 193 Index — Act of 1896. 297 Religious corporations: Page. exemption of, § 221 156 illustrative cases 160 only domestic corporations exempt 160 provision retroactive 160 Remainders: See Future and Contingent Interests. Rensselaer county: salaried appraiser; compensation, § 230 189, 190 Repeals: laws repealed by Laws 1901, chap. 173 232 Report: of appraiser appointed by supreme court, § 232 210 of appraiser; what to contain 207 conclusiveness of 208 reservation in; of right to tax 208 surrogate may remit 207 to be made in duplicate, § 232 209 where filed, § 232 209 of county treasurer in county where appraiser is not salaried, § 240 227 of state comptroller, § 240a 228 quarterly ; of surrogate and county clerk, § 239 226 Residence: what constitutes 132 Residents: transfers by, when taxable, § 220 114, 115 when transfers by, are taxable 122-124 when transfers by, are not taxable 125, 126 See Taxable Transfers; Nontaxable Transfers; Tax; Appraisal. Retroactive effect: of amendment of 1887, as to adopted children 117 of amendment of 1892, exempting bishops and religious cor- porations 117 statute to be given, only when intent is clear 116 Reversions: See Future and Contingent Interests. Richmond county: salaried appraiser; compensation, § 230 189, 190 Safe deposit company: liability to tax, § 228 171 298 Index — Act of 1896. Securities: Page, appraisal of; Laws 1891, chap. 34, and decisions 200-202 Services: legacy for, taxable, if accepted 123 State comptroller: appointment of salaried appraisers by, § 230 189 composition of tax by, in certain cases, § 230a 196 may appeal from determination of surrogate, § 232 209 may apply to supreme court for reappraisal, § 232 210 may retain counsel in transfer tax proceedings, § 235 222 not precluded from taking proceedings because surrogate ex- presses opinion that estate is not taxable 196 to furnish books to transfer tax officers, § 238 225 Stock: of domestic corporation, owned by nonresident, (taxable, wher- ever situated 133 owned by nonresident but in name of broker, taxable. . . . 133 pledged by nonresident, not taxable 135 subject to life estate owned by nonresident, taxable. . . . 134 of foreign corporation owned by resident, taxable 122 of foreign corporation owned by nonresident, not taxable.... 135 of national bank owned by nonresident, taxable 134 pledged as collateral but not redeemed, not taxable 126 pledged as collateral, taxable if redeemed 123 Stock exchange: seat in, transfer taxable 123 Suffolk county: salaried appraiser; compensation, § 230 189 transfer tax clerk in, § 234 219 Superintendent of insurance: to appraise contingent interests, § 232 209 Surrogate: appeal from determination of, § 232 209 appeals from orders; decisions classified and considered. . 215-217 assistants of, in New York county, § 233 218 effect of failure of, to give notice of assessment 212 entries to be made by, in transfer tax books, § 238 226 is taxing officer 174, 211 jurisdiction of, § 229 173-176 ancillary letters unnecessary 175 first acquiring, retains, § 229 173 where nonresident owns stock in domestic corporation. . . . 175 where nonresident leaves stock in more than one county. . 175 where residence is denied •. 17S where estate of nonresident is distributed 175 Index — Act or 1896. 299 Surrogate — (Continued): Page. may order further appraisal 207 modification by, of order assessing tax 213-215 powers of, in tax proceeding 174 presumption of notice by 212 quarterly report, § 239 '. 226 to determine tax where ancillary letters are issued, § 229. .. . 174 to apply to superintendent of insurance to appraise contin- gent, etc., estates, § 232 209 to appoint special guardian for infants in certain cases, § 232 • 210 to determine from report cash value of estate, § 232 209 to give notice of assessment of tax, § 232 209 to order appraiser to fix fair market value of property of per- sons whose estates are taxable, § 230 190 when failure of, to tax is determination 213 when to assess tax on amount of erroneous deduction, § 225 . . 168 which, has jurisdiction; property transferred under power of appointment 149 Tax: administrators, etc., liable for, § 222 161 amount of estate determines liability to 120 amount of estate subject to, § 220 . . . , 113, 115 application of, § 241 229 assessment of, persons liable 212 composition of; where not presently payable, § 230a 196 collection of, by executors, etc., § 224 165 deposit of, by state comptroller, § 240a 228 estates not subject to 120, 121 is lien until paid, § 222 . < 160, 162 is on property as transferred 118 is on succession, not on property 119 judgment as to, how far conclusive 212 judgment on construction of will not conclusive as to liability. 212 nonliability to general taxation does not exempt from 120 notice of assessment of, to be given by surrogate, § 232 209 on devises, etc., in lieu of commissions, § 227 170 payment of 166 payment of, by state comptroller, § 240a 228 proceedings for collection of, § 235 220 proceedings to collect; statute of limitation not applicable to, § 282 '. 231 rate of, determined by relationship of donee and beneficiary on exercise of power of appointment 148 rate of, on transfers to collaterals, etc., § 220 * 114, 116 receipts for payment of, from county treasurer or state comp- troller, § 236 224 300 Index — Act of 1896. Tax— (Continued): Page. refunds of, when and how allowed, § 225 167-169 to be imposed at highest rate which may be imposed in any contingency, § 230 192 to whom paid, § 222 161 transfers in general, subject to 122-124 transfers not subject to 125-127 transfers subject to, § 220 113, 115 when imposed on remainders 141-143 when nonresidents are subject to 131-137 when payment may be deferred, § 226 169 when to be assessed on amount of erroneous deduction, § 225. . 168 See Taxable Transfers; Nontaxable Transfers; Nonresi- dents; Future and Contingent Interests; Appraisal. Taxable transfers 113, 115 bequest for masses in certain cases 123 by nonresidents, § 220 114, 115 by residents, § 220 114, 115 claim forgiven under direction in will 124 debts due from legatee 123 devise of realty, with general right of disposition 124 devises or bequests in lieu of commissions, § 227 170 distributive share in realty not converted at time of death .... 124 equity in mortgaged lands 122 future and contingent interests 137-145 gifts causa mortis 127-129 gifts to take effect at death v 127-129 good-will of business 122 governed by statute in force at date of death 116 interest in fund in partition action 123 interest in partnership 123 interest in realty of joint-stock association 122 judgment against heir or legatee 122 leasehold interest in land 124 legacies for services, if accepted 123 legacies to United States 123 legacy not expressly in lieu of dower 124 life insurance policy owned by resident 122 note of legatee included in residue 122 personal property of resident 122 although without state 122 property of nonresident, when taxable 131 seat in stock exchange 123 stock pledged as collateral, if redeemed 124 stocks of foreign corporations, owned by resident 122 to take effect at or after death, § 220 114, 115 under power of appointment, § 220 115 Index — Act of 1896. 301 Taxable transfers— (Continued): Page. under powers of appointment 145-150 United States bonds since March 21, 1898 123 See Tax; Nonresidents; Power of Appointment; Future and Contingent Interests; Appraisal; Exemptions. Taxes: if not a lien, not to be deducted 205 to be deducted, when 204 war revenue, not to be deducted 205 Ten thousand dollars: aggregate amount of estate determines liability 120 estates of less than, passing to lineals and near relatives ex- empt, § 221 156 Tract societies: exempt as religious corporations, § 221 155 Transfer: defined by court of appeals 118 defined, § 242 230 Transfers in contemplation of death: taxable 127-129 Transfer tax clerks: in certain counties; salaries, § 234 219 Trust company: liability to tax, § 228 171 Trust deeds: made before death,- when transfers by taxable, as gifts causa mortis 127-129 when transfers by not taxable 129-131 Trustees: See Administrators. Ulster county: transfer tax clerk in, § 234 219 United States: bonds, not taxable prior to March 21, 1898 125 bonds, taxable since March 21, 1898 123 legacy to, taxable _ 123 Westchester county: salaried appraiser; compensation, § 230 189 transfer tax assistant in, § 234 219 Witnesses: competency of, on appraisal 199 fees of, on appraisal, § 231 198 INDEX— Part IV. FORMS. Affidavit: Page, directions for preparation of, in appraisal of estate of resident. 264 of administrator in appraisal of estate of nonresident 261 » of executor in appraisal of estate of nonresident 263 of mailing of notice of hearing 238 Annuities: application to superintendent of insurance for valuation of . . . 239 Appeal: notice of, to appellate division 249 notice of, to surrogate 247 order on, to surrogate 248 Appraiser: notice of hearing by 237 oath of 236 order appointing, in district attorney proceedings 270 order appointing (in estates of resident and nonresident decedents) 235 order remitting report to 258 petition for appointment of, in estate of nonresident decedent. . 234 petition for appointment of, in estate of resident decedent 233 report of 240-245 subpoena of 238 Banks: waiver, by comptroller, of notice of, and consent to, transfer of deposits in 260 Citation: in district attorney proceedings 267 petition for, in district attorney proceedings 267 Composition agreement 258 District attorney: proceedings of 267-27 1 petition for citation 267 order that citation issue 268 citation 269 order appointing appraiser 270 decree fixing tax and directing payment 271 [303] 304 Index — Foems. o Hearing: Page- affidavit of mailing notice of 238 appraisers' notice of 237 Life estate: application to superintendent of insurance for valuation of 239 Nonresident: affidavit of administrator in appraisal of estate of 261 affidavit of executor in appraisal of estate of 263 order appointing appraiser in estate of 235 order fixing tax upon report of appraiser in estate of 245 petition for appointment of appraiser in estate of 234 Notice: of appeal to appellate division 249 of appeal to surrogate 247 of assessment of tax by surrogate 246 of motion to remit penalty 251 Notice of hearing: affidavit of mailing of 238 by appraiser 237 Oath of appraiser 236 Order: appointing appraiser (in estates of residents and nonresidents) . 235 appointing appraiser in district attorney proceedings 270 exempting estate 257 fixing and directing payment of tax in district attorney pro- ceedings 271 fixing tax (upon report of appraiser in estates of residents and nonresidents) 245 fixing tax where no appraiser appointed 255 for citation in district attorney proceedings 268 on appeal to surrogate 248 remitting penalty '. 252 remitting report to appraiser 258 Penalty: notice of motion to remit 251 order remitting 252 petition for remission of 250 Petition: for appointment of appraiser in estate of nonresident decedent . . 234 for appointment of appraiser in estate of resident decedent. . . . 233 for citation in district attorney proceedings 267 for order fixing tax without appointment of appraiser 253 for remission of penalty 250 to declare estate exempt 256 Index — Fokms. 305 Remainders: Page, application to superintendent of insurance for valuation of. .. . 239 composition of 258 Report: order remitting, to appraiser 258 Report of appraiser 240-245 Resident: directions for preparation of affidavit in appraisal of estate of . . 260 order appointing appraiser in estate of 235 order fixing tax upon report of appraiser in estate of 245 petition for appointment of appraiser in estate of 233 Safe deposit box: waiver by comptroller of notice of, and consent to, opening of . . 260 Subpoena of appraiser 238 Superintendent of insurance: request to, for valuation of estates, annuities and remainders. . 239 Waivers of notice under § 228 260 [whole number of pages, 323.]