In re McCarthy's Estate

by the surrogate shall conform to the provisions of the Code of Civil Procedure for the service of citations ont of the surrogate’s court, and the hearing and determination thereon, and its enforcement so far as the same may be applicable.” The costs awarded by any such decree after collection and payment of the tax to the comptroller may be retained by the district attorney for his own use. 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 to the comptroller all expenses incurred for the service of citations and other lawful disbursements not otherwise paid. The section then provides for the representation of the comptroller, in voluntary proceedings brought to have the tax fixed, and the payment of the expenses thereof. It will be seen, therefore, that the section provides clearly and systematically for the manner in which the expenses of these three different proceedings shall be defrayed: First. For proceedings instituted by the district attorney, in which he is successful in collecting the tax. That it refers to successful proceedings is apparent from the provision that the costs may be retained by the district attorney for his own use. Such costs, except as to the amount, are governed by the section of . the Code and the rules of the court applicable to other proceedings therein. Rule 22 prescribes the practice whenever a party shall deem himself entitled to costs, which include any disbursements to which he may believe himself entitled. See section 2559, Code Civil Proc. Second. For proceedings in which the district attorney is unsuccessful. This is inténded as a precaution against the indiscriminate commencement of proceedings without sufficient preliminary inquiries, and calls for the judicial determination by the surrogate upon proof that there was probable cause for commencing the same. The affidavit in the case at bar simply sets forth that the comptroller notified the district attorney, and that the proceedings were commenced in good faith. It furnishes no evidence as to the facts and circumstances from which the court may form an opinion as to the existence of probable cause. That the comptroller believed that there was a tax due, and that the district attorney had probable cause to believe that the tax was due, is not sufficient basis on which this court should find judicially that probable cause existed. Third. The third class of cases provided for by this section are those in which voluntary proceedings are brought by persons interested in the estate. I conclude, therefore, that, in proceedings in which the district attorney is successful, the costs and disbursements to which he máy deem himself entitled must be taxed in the manner provided by rule 22 of this court, and cannot be otherwise allowed; that in proceedings in which he is unsuccessful he must show that fact, and furnish evidence to establish probable cause. Thus I recall an' instance in which such a proceeding was brought, where it appeared from the will that a legacy was given in an amount rendering it liable to taxation to a stranger for services rendered. A proceeding was instituted by the district attorney, and upon the hearing before

the appraiser it was developed by the oral testimony taken that the legacy in question was in fact given in liquidation of a claim which might have been enforced against the estate by action. In that case, though the district attorney was unsuccessful, he had an undoubted right to investigate the matter for the purpose of satisfying himself that the recital in the will was not a subterfuge for avoiding the payment of the tax. This would have been a proper case for the issuance of a certificate upon the facts being shown, but the court should not be called upon to rely upon his recollection for each individual case, nor be required to examine the records of the court to ascertain the facts in any particular case. A certificate will only be granted where an affidavit is filed disclosing all the pertinent facts, and giving data from which the court may be able to make independent investigation if desired.