Majority
p. 244In the Matter of the Appraisal, under the Act in Relation to Taxable Transfers of Property, of the Property of Owen B. Arnold, Deceased. First Department, June 15, 1906.
Headnote
Transfer tax on property of non-resident—jurisdiction of surrogate — when assessment of lands excessive.When a non-resident dies without the State, leaving personal property in one county of this State, the surrogate of that county has exclusive jurisdiction to assess a transfer tax thereon; but when the personal property is within two or more counties the surrogates of those counties have concurrent jurisdiction.
When a non-resident dies owning stock of several domestic corporations whose principal places of business are iu different counties, such stock is, within the meaning of subdivision 3 of section 2476 of the Code of Civil Procedure, property within that county where the corporate property is or where the corporation has its principal place of business; and if a petition for letters testamentary or for letters of administration has not been filed in any other county, the surrogate of such county has jurisdiction to assess a transfer tax on the stock situated in all the counties, by virtue of section 229 "of the Tax Law and section 2477 of the Code of Civil Procedure.
In assessing real estate for a transfer tax, the best price that the devisee could obtain. for it by diligent effort should control over mere expert opinion as to its value.
Appeal from an order of the Surrogate’s Court of the county of New York, confirming the report of appraisers.
William, T. Read, for the appellant.
Charles M. Russell, for the respondent.
The only question presented upon this appeal is whether the surrogate of the county of New York liad jurisdiction in this proceeding. The decedent was a resident of the State of Connecticut and his estate was there administered. He owned capital stock in various corporations whose principal places of business were in the counties of New York, Albany, Rensselaer and Saratoga. He had no other property in the State of New York, except certain real
p. 245
estate in the county of Erie, and no ancillary letters have been issued upon his estate in this State. The property assessed in this proceeding consists of .shares of stock in the various New York corporations and one piece of real property on the southwest corner of Lafayette avenue and West avenue, Buffalo, N. Y. The jurisdiction of the Surrogate’s Court of New York county depends upon section 229 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap. 173), which provides that “ 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 article * * -x- s}iall have jurisdiction to hear and determine all questions arising under the provisions of this article[1] and to do any act in relation thereto.” To'give the surrogate jurisdiction of this proceeding, it must appear that the surrogate of the county of New York had jurisdiction to grant letters testamentary or of administration upon the estate of this decedent. The jurisdiction of the surrogate to grant letters testamentary or of administration is regulated by sections 2176 and 2177 of the Code of Civil Procedure. Section 2176 provides for cases where the Surrogate’s Court in one county has exclusive jurisdiction. Exclusive jurisdiction is given to the Surrogate’s Court (Subd. 3), “ Where the decedent, not being a resident of the State, died without the State, leaving personal property within that county, and no other; or leaving personal property which has, since his death, come into that county, and no other, and remains unadministeredand (Subd. 4), “ Where the decedent was not, at the time of his death, a resident of the State, and a petition for probate of his will, or for a grant of letters of administration, under subdivision second or third of this section, has not been filed in any Surrogate’s Court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter,[2] is situated within that county, and no other.” Section 2177 of the Code provides for cases where two or mo2*e surrogates have concurrent jurisdiction. 44 Where personal property of the decedent is within, or comes into, two or more counties, under the circumstances specified in sub
* Tax Law, art. 10, as amd.— [Rep.
† † Code Civ, Proc. chap. 18, tit, 5.— [Rep,
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division third of the last section; or real property of the decedent is situated in two or more counties, under the circumstances specified in subdivision fourth of the last section; the Surrogates’ Courts of those counties have concurrent jurisdiction, exclusive of every other Surrogate’s Court,” to grant letters testamentary or of administration, as the case may require. Beading these sections together I think it clear that where, under subdivision 3 of section 2476, the decedent, not being a resident of this State, dies without the State leaving personal property in one county, the Surrogate’s Court of that county has exclusive jurisdiction to grant letters testamentary or of administration ; when, however, personal property of the decedent is within two or more counties, then the Surrogates’ Courts of the two or more counties have concurrent jurisdiction. A non-resident dying owning stock of a domestic corporation, such stock is, within the meaning of subdivision 3 of section 2476 of the Code of Civil Procedure, property within that county where the corporate property is, or where the corporation has its principal place of business. The provisions of section 2476 of the Code apply to exclusive jurisdiction; and where there is no personal property within the State, and the decedent left real property in one county, and no other, that county has exclusive jurisdiction; but under section 2477, where he left personal prop • erty within two counties, then both of those counties have concurrent jurisdiction. The words “ no other” in section 2476 relate to exclusive jurisdiction, and do not affect the concurrent jurisdiction which section 2477 conferred upon these Surrogates’ Courts where personal property of a decedent is in two or more counties. I think, therefore, the surrogate had jurisdiction.
The other question presented is as to the value of the estate assessed in Buffalo. It appeared that the devisee of the real property had sold the property for $1,600, and that was the best price that she could obtain. I think that to fix the value of that real property at $2,860, instead of the- price at which the property actually sold, was imjust. Certainly the evidence of a real estate appraiser, who testifies to an opinion of the value of the proj)erty, is not sufficient to overcome an actual sale where the evidence is that diligent efforts had been made to sell the property and the price at which it was sold was the best that could be obtained.
The order should be modified by reducing the assessment of the
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appellant’s property by the sum of §1,260, making it §7,356.50, and as modified affirmed, with ten dollars costs and disbursements to the appellant.
O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.