In re Bell's Estate — 158 N.Y.S. 142

Majority

p. 142

In re BELL’S ESTATE.

(Surrogate’s Court, New York County.

March 29, 1916.)

Headnote

1. Taxation @=>895(5)—Transfer Taxes—Appraisement.

Upon a hearing before a transfer tax appraiser to ascertain the value of a decedent’s estate, an affidavit submitted by the state comptroller, showing the value of mortgaged premises, while an element to be taken into consideration, is not sufficient in itself to prove the value of the mortgage.

[Ed. Note.—For other eases, see Taxation, Dec. Dig. @=>895(5).]

2. Taxation @=>895(3)—Transfer Taxes—Evidence.

Upon a hearing before a transfer tax appraiser to ascertain the value of a decedent’s estate, a witness should be allowed to answer any question,

p. 143

even if objected to, tending to elicit information that may assist the appraiser in determining the value of the property, as the materiality of the answer may be considered by the surrogate upon an appeal.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1717; Dec. Dig. <8=895(3).]

3. Taxation <8=900(4)—Transfer Taxes—Review of Assessment.

Where a transfer tax appraiser refuses to allow material questions propounded by the executor, the report will be remanded for the purpose of taking further testimony.

[Ed. Note.—For other cases, see Taxation, Dec. Dig. <8=900(4).]

4. Taxation <8=895(7)—Transfer Tax—Valuation of Estate—“Expenses of Administration.”

Under Code Civ. Proc. § 2753, providing that upon an accounting of an administrator the surrogate shall allow him reasonable compensation for legal services, in addition to an allowance for his services in his official capacity, the fact that one of the executors has represented the estate in his professional capacity as an attorney does not warrant the transfer tax appraiser in refusing to allow compensation for services in his official capacity as expenses of administration.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1719; Dec. Dig. <8=895(7).

For other definitions, see Words and Phrases, First and Second Series. Expenses.]

5. Executors and Administrators <8=482—Expenses/ of Administration— Power of Subrogate.

The power of a surrogate to grant an allowance for expenses of administration is governed by the law in force when the application for an allowance is made.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 2066; Dec. Dig. <@=482.]

6. Taxation <8=895(7)—Transfer Tax—Expenses of Administration.

The expense of foreclosing a mortgage is an expense of administration, and should be deducted, from the assets of the estate in determining the transfer tax.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1719; Dec. . Dig. <8=895(7).]

In the matter of the estate of Julia A. Bell. From an order entered upon the report of a transfer tax appraiser, the executors appeal. Order reversed, and report remanded for correction and further testimony.

J. C. O’Go-nor, of New York City, for executors.

Lafayette B. Gleason, of New York City (Schuyler C. Carlton, of New York City, of counsel), for state comptroller.

The executors contend that the appraiser erred in placing a valuation of $16,500 on a certain bond and mortgage owned by the decedent at the time of her death. The testimony taken before the appraiser shows that the executors foreclosed the mortgage, sold the mortgaged premises at public auction and bid it in for the benefit of the estate at the sum of $5,000. The appraiser’s report, however, contains no competent evidence of the value of the mortgage at the date of decedent’s death.

p. 144

[1] The state comptroller submitted an affidavit showing the value of the mortgaged premises; but, while this is an element to be taken into consideration in ascertaining the value of the mortgage, it is not in itself sufficient proof of the value of the mortgage. That value may be affected by the financial responsibility of the mortgagor, the length of time the mortgage has to run, the character of the mortgaged premises, and their location. While many of the questions propounded by the executors were incompetent, some of those which the appraiser disallowed were clearly competent and should have been allowed.

[2] Upon a hearing held before a transfer tax appraiser for the purpose of ascertaining the value of a decedent’s estate, he should allow any question which tends to elicit information that may assist him in determining the value of the property. A witness should be allowed to answer, even if the question is objected to, as the materiality of the answer may be considered by the surrogate upon an appeal taken from the order entered upon the appraiser’s report.

[3] As the appraiser in this matter refused to allow material questions .propounded by the executors, the report will be remitted to him for the purpose of taking further testimony as to the value of the bond and mortgage.

[4] The appraiser erred in refusing to allow a reasonable sum as expenses of administration. The fact that one of the executors, who is an attorney and counselor at law, has represented the estate in his professional capacity does not warrant the appraiser in refusing to allow expenses of. administration, as the surrogate may upon an accounting allow such an executor a reasonable sum as compensation for professional services rendered by him. See section 2753, C. C. P.

[5] The power of the surrogate to grant such an allowance is governed by the law in force when the application for an allowance is made. Taking into consideration the services rendered by the attorney in this proceeding, and the value of the estate, I am inclined to think that $350 would be a reasonable deduction for such services.

[8] The expense of foreclosing the mortgage is also an expense of administration and should be deducted from the assets of the estate.

The qrder fixing tax will be reversed and the appraiser’s report remitted to him for correction and for further testimony as indicated.