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In re the Appraisal under an Act Relating to Taxable Transfers of the Property of Earle

74 A.D. 458 Court N.Y. App. Div. English

Delivered by Hatch, J.:

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p. 458
In the Matter of the Appraisal under an Act Relating to Taxable Transfers of the Property of William P. Earle, Deceased. The Comptroller of the City of New York, Appellant; William H. Earle and Frank T. Earle, as Executors, etc., of William P. Earle, Deceased, and Others, Respondents,

Headnote

Transfer tax —the report of the appraiser should state the value of all the testator's property subject to tax—power of a surrogate to vacate his order of confirmation.
Where, six years after the payment of a transfer tax upon the estate of a decedent, a new proceeding is instituted for the collection of a transfer tax on property belonging to the decedent at the time of his death and which had been omitted from the first appraisal, it should definitely and clearly appear that all of the property remaining of the estate, subject in any contingency .to the payment of a transfer tax, is embraced within the proceeding, and to that end the report of the'appraiser should state the value of all of the property of . .the testator subject to a tax at the date of his death.
p. 459
Where the surrogate confirms the appraiser’s report, without noticing that it is defective in this respect, he has authority to vacate his order of confirmation arid send the report hack to the appraiser for correction.
Appeal by the Comptroller of the City of ¡New York from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 5th day of ¡November, 1900, vacating and setting aside the report of the appraiser under, the Inheritance Tax Law and sending the same back to him for corree-, tian and amendment, so that said report shall state the value of the appraised property of the testator at the date of his death.
Edward H. Fallows, for the appellant.
Hamilton Odell, for the respondents.

The report of the appraiser in this case seems to have been defective in not stating the value of the property subject to tax on the date of the death of the testator. There are certain specifiq items of property set out in the report consisting of the indebtedness of the children and descendants of the testator evidenced by promissory notes, which are stated to be the sums due at the date of thó¡ death of the testator and upon these sums the tax was assessed, but the report does not show that this was all of the property of the testator at the date of his death subject to' a tax. This estate was appraised and paid a transfer tax of $11,877.27 some six' years prior to the -present appraisal. The comptroller some six years later presented a petition to the surrogate showing that other property belonging to the testator was at the date of his death omitted from the first appraisal, and thereupon an order was issued for this appraisal, the subject of this appeal. It is evident that there are several important questions of law involved in subjecting the after-discovered property to the. payment of a tax, and the persons charged therewith ought to have an opportunity to present such questions. It ought also to definitely and clearly appear that all of the property remaining of this estate, subject in any contingency to the payment of a tax, is embraced within the present proceeding that 'the matter may not be left to be the subject of subsequent dispute; to that end the report should be made clearly to express that it embraces all of the property which may be taxed at the date of the

p. 460
death of the testator. The report does not in terms so state, and,, therefore, it ought not to have been confirmed. The learned surrogate who made the order confirming the .same states that he signed it inadvertently, without noticing this defect, and upon that, ground he vacated and set the same aside to the énd that all questions might- be definitely and finally settled in connection with it. It is evident that if there is any doubt the order should be sustained. The statement already made is sufficient to show such doubt. The= only question, therefore, which the appeal presents is, has the surrogate power to grant the order.

We have previously held that the authority of the surrogate to-make the order must be found in the act itself. (Matter of Smith,, 40 App. Div. 480 .) By section 229, chapter 908, Laws of 1896,. revising and re-enacting section 10, chapter 399, Laws of 1892, it is, provided that the Surrogate’s Court shall have jurisdiction to hear and determine all questions arising under, the provisions of the-Transfer Tax Act, and to do any act in relation thereto authorized by law to be done by the surrogate in other matters or proceedings-coming within his jurisdiction. The exercise of authority in the= present case is for the -purpose of correcting an inadvertent error-committed by the surrogate under a mistake of fact. Under such circumstances, power exists to correct the mistake. (Matter of Henderson, 157 N. Y. 423 ; Matter of Robertson, 51 App. Div. 117 ; affd., 165 N. Y. 675 , on opinion below; Dobke v. McClaran,, 41 Barb. 491 .) Matter of Crerar ( 56 App. Div. 479 ) does not hold otherwise. In that case there was no infirmity in the order. The surrogate, in entering it, had jurisdiction; there was no mistake of fact; it had stood unchallenged for upwards of six years, and the estate to which it referred had been settled and distributed. The case was correctly decided upon the facts appearing therein, but its-peculiar features limit it as an authority to the case then before the court.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ.„ concurred.

Order affirmed, with ten dollars costs and disbursements.

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