sation, the excess of this gift over and above a reasonable compensation for their services is taxable.28

§ 281. Compensation of Trustees.-In New York the view has been taken that the commissions of trustees under a will are to be deducted in assessing the inheritance tax. This is thought to be a necessary implication from the rule of the statute that any bequest or devise to trustees in excess of their commissions allowed by law shall be taxable." But in Minnesota, where property of an estate is committed to a trustee for a definite period, to be by him managed and controlled for the benefit of those to whom it passes by will, the compensation of the trustee fixed by the will is not a proper item to deduct from the valuation of the estate. "The expenses of the administration of the estate of a deceased person," said the court, "are proper to be deducted in ascertaining the value of the estate for the purposes of taxation under the inheritance tax law. But the compensation of a trusfee, earned, not in the administration of the estate, but in the management thereof for the benefit of the legatees or devisees, does not come properly within the class or reason for exempting administration expenses. The trustee is authorized by the will to manage and control the estate in the ordinary manner of conducting trusts, and, if deemed prudent within his opinion,

the death and the date of the issuance of letters is to be considered: Estate of Van Pelt, 63 Misc. Rep. 616, 118 N. Y. Supp. 655.

When no proof is made, upon the appraisal of assets in the state owned by a nonresident decedent, 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 of commissions allowed in this state: Estate of Kennedy, 20 Misc. Rep. 531, 46 N. Y. Supp. 906.

28 See sec. 163, ante.

29 Estate of Gihon, 169 N. Y. 443, 62 N. E. 561; Estate of Silliman, 79 App. Div. 98, 80 N. Y. Supp. 336; Estate of Shields, 68 Misc. Rep. 264, 124 N. Y. Supp. 1003.

to continue the business theretofore carried on by the testator. Services rendered in that behalf have no reference to closing the estate for the purpose of distribution thereof to those entitled to it and are not required or essential to the perfection of the rights of the heirs or legatees. The expenses of administration are imposed as a matter of law, and are caused by the use of the legal machinery provided by the state to wind up the affairs of deceased persons, and cannot ordinarily be avoided; hence it is just that they should be deducted from the valuation of the estate. Trusts, however, of the character of that here before the court, are created for the benefit of those to whom the property ultimately passes, are of voluntary creation, and intended for the preservation of the estate. No sound reason is given to support the contention that such expenses should be taken into consideration in fixing the value of the estate for the purpose of this tax." 30

§ 282. Commissions of Brokers. In the event that a sale of property of a decedent is necessary and an act of administration, the commissions of a broker for finding a purchaser may be regarded as a proper expense of administration and deducted from the estate in determining its taxable value. In the cases where this has been held to be the law, the will gave the executors a power of sale."1

§ 283. Property Taxes Paid by Executor.-Taxes on the real estate of a decedent, which were due and payable at the time of his death and have been paid by his executor, should be deducted in fixing the value of his estate for purposes of inheritance taxation.32

30 State v. Probate Court, 101 Minn. 485, 112 N. W. 878.

31 Estate of Rothschild, 63 Misc. Rep. 615, 118 N. Y. Supp. 654; Estate of Shields, 68 Misc. Rep. 264, 124 N. Y. Supp. 1003. 32 Estate of Liss, 39 Misc. Rep. 123, 78 N. Y. Supp. 969.

If, at the time of the death, the assessment is complete and has passed the stage when any change therein can be made, the tax would seem a debt proper for the personal representative to pay in course of administration and proper to deduct in valuing the estate for the inheritance tax; but a general assessment, which has not been advanced to that stage of finality at the time of the decease, is not a debt to be so deducted. "Taxation cannot create a debt until there is a tax fixed in amount and perfected in all respects. It is not enough to lay the foundation, but the structure must be built.''

§ 284. United States Succession Tax.-The Massachusetts practice has been to deduct the legacy tax, paid to the United States under the revenue act of 1898, from the estate of a decedent in appraising it for the state succession tax. This seems to be a reasonable procedure and has been approved on at least one occasion in New York." There can be no doubt, however, that a state may decline to make such deduction, and the New York courts generally have so declined."

§ 285. Homestead, Exemptions, and Family Allowance.-Money paid by order of the probate court as

33 Estate of Maresi, 74 App. Div. 76, 77 N. Y. Supp. 76; Estate of Hoffman, 42 Misc. Rep. 90, 85 N. Y. Supp. 1082; Estate of Freund, 143 App. Div. 335, 128 N. Y. Supp. 48, affirmed, 202 N. Y. 556, 95 N. E. 1129.

According to Estate of Brundage, 31 App. Div. 348, 52 N. Y. Supp. 362, a deduction should be made of taxes levied after the death of the decedent, under an assessment made against him before his decease, and paid by the executor from the estate.

84 Hooper v. Shaw, 176 Mass. 190, 57 N. E. 361; Estate of Gihon, 33 Misc. Rep. 206, 68 N. Y. Supp. 381, 64 App. Div. 504, 72 N. Y. Supp. 1104, 169 N. Y. 443, 62 N. E. 561.

35 Estate of Becker, 26 Misc. Rep. 633, 57 N. Y. Supp. 940; Estate of Irish, 28 Misc. Rep. 647, 60 N. Y. Supp. 30; Estate of Curtis, 31

an allowance to the family of the decedent, property exempt to them under the law, and the homestead set apart for their use, do not pass by will or by the intestate laws, and should be deducted from the estate in estimating its value for the purpose of assessing the inheritance tax. This question has been considered in a previous chapter."

§ 286. Property Misappropriated by Executor.The supreme court of California has ruled that since. the right of the state to the inheritance tax accrues at the moment of death, and is measured as to any beneficiary by the value at that time of such property as actually passes to him, the loss or destruction of a part of the property before actual delivery of possession to him cannot affect the amount of the tax, any more than would a material depreciation in value. Therefore, where the executor misappropriates a portion of the estate, the value of the property so lost should be included in computing the tax."

Misc. Rep. 83, 64 N. Y. Supp. 574; Estate of Vanderbilt, 71 App. Div. 611, 75 N. Y. Supp. 969, 172 N. Y. 69, 64 N. E. 782.

36 See secs. 59, 60, ante.

87 Estate of Hite, 159 Cal. 392, 113 Pac. 1072.

CHAPTER XIX.

VACATION AND MODIFICATION OF ORDERS OR DECREES.

§ 290.

Conclusiveness of Orders and Decrees.

§ 291. Vacation or Setting Aside of Orders and Decrees.

§ 292.

Modification of Orders and Decrees. § 293. Correction of Valuation of Property.

§ 290. Conclusiveness of Orders and Decrees.Where the statutes confer jurisdiction on a court to hear and determine all questions in relation to inheritance taxes, the orders or judgments of that court in the matter of appraising the estate and assessing the tax, whether it is a probate court or a court of general jurisdiction, have that quality of finality and conclusiveness possessed by other judgments or orders, and, unless appealed from or attacked on motion within the time prescribed by law, they cannot be questioned, except for reasons which will warrant intervention by a court of equity, by the parties in subsequent proceedings for the collection of the tax assessed.1

"The appraisement proceeding," to adopt the language of a New York judge, "furnishes an opportunity to the parties interested in the estate, on the one

1 Becker v. Nye, 8 Cal. App. 129, 96 Pac. 333; Port Huron v. Wright, 150 Mich. 279, 114 N. W. 76; Estate of Wolfe, 137 N. Y. 205, 33 N. E. 156; Estate of Lawrence, 96 App. Div. 29, 88 N. Y. Supp. 1028; Estate of Moneypenny, 181 Pa. 309, 37 Atl. 589. To the same effect, see Estate of Miller, 110 N. Y. 216, 18 N. E. 139; Estate of Hacket, 14 Misc. Rep. 282, 35 N. Y. Supp. 1051; Estate of Lawrence, 96 App. Div. 29, 88 N. Y. Supp. 1028.

The establishment by a court of the inheritance tax payable from an estate is an adjudication upon that subject which binds the state as well as the estate as to all questions passed upon: Estate of Gordon, 2 Cof. Pro. 138.

The fact that the surrogate, upon the basis of the executor's affidavit, orally expresses the opinion that an estate is too small to be taxable, does not preclude subsequent proceedings to assess a tax,