In accordance with this doctrine, it has been decided that a surrogate has no power to modify his determination of the value of an estate in order to allow the executor the amount of a judgment subsequently recovered against the estate by suit after his rejection of the claim, and another claim presented against the estate after the appraisement, and also certain expenses of administration.22 It has also been held that a reappraisement will not be ordered merely because the property, after the order fixing the tax, sells at public auction for an amount exceeding the appraisement, no fraud, concealment, or mistake being alleged; 2 and that where property, some months after the appraisement, sold for only a little more than half of the amount for which it was appraised, does not warrant the surrogate in modifying his decree by reducing the valuation to the sum realized on the auction sale. In so deciding the court refers to the statement of Justice Spring 25 that "if facts have arisen since the imposition and payment of the tax showing it was improperly assessed or excessive in amount, or without the jurisdiction of the court to tax, then the court possesses the power to redress the wrong done"; and declares 26 that if this statement involves the conclusion that the power of the surrogate is broad

24

22 Estate of Connelly, 38 Misc. Rep. 466, 77 N. Y. Supp. 1032.

23 Estate of Bruce, 59 N. Y. Supp. 1083.

24 Estate of Lowry, 89 App. Div. 226, 85 N. Y. Supp. 924.

25 This statement is made in Morgan v. Cowie, 49 App. Div. 612, 63 N. Y. Supp. 608.

26 Estate of Lowry, 89 App. Div. 226, 85 N. Y. Supp. 924. In this case it was sought to have the surrogate's order fixing the value of the estate modified because a sale of the estate a few months later indicated that it was appraised too high. The court said: "The valuation now alleged to have been erroneous was fixed upon all the evidence which the parties chose to lay before the court at the time, and so far as appears upon all the evidence which then existed. A practice which would permit judgments fixing values to be opened from time to time in cases where a subsequent sale of the appraised property tended to show that the figure fixed by the judgment was

enough to permit him to alter his valuation upon the reception of proof as to subsequently arising facts indicating that it was too high or too low, the correctness of the proposition is doubtful.

too large or too small, would lead to intolerable uncertainty and confusion. In the administration of justice, all that can ordinarily or reasonably be expected or demanded by litigants in the determination of their controversies is that these shall be correctly decided upon the facts relevant to the issues which have occurred before the trial and those which exist at the time when the trial takes place. They cannot be insured against the possibility of future happenings which may indicate that the decision was in some respects incorrect. In expressing the opinion, however, that a judgment on an issue of value should not be disturbed by the court which rendered it on account of subsequently arising evidence tending to show that the valuation adopted was erroneous, it was not necessary to hold that there can be no case in which a court might modify its decree because of an error of fact arising upon the trial or hearing. Such power would probably exist, for example, where the property appraised, which all parties assumed to have belonged to the decedent, really included a lot which he never owned; and in other cases in error not relating to any issue actually litigated."

CHAPTER XX

APPEALS.

$300. Persons Entitled to Appeal.

301. Time for Appeal.

§ 302.

Notice of Appeal.

§ 303. Bonds or Undertakings.

§ 304. Other Appellate Proceedings.

§ 300. Persons Entitled to Appeal. The executor, as such, is entitled to appeal from an order and decree fixing an inheritance tax; he is made liable for the tax, and is a party aggrieved within the meaning of the statute relating to appeals.' And the state, as an interested party, has such right of appeal. In New York the state controller is entitled to appeal from the order of a surrogate determining that part of an estate is not subject to the transfer tax, or reversing an order assessing a transfer tax. In Ohio, where the probate court determines the liability of a devise, legacy or inheritance for the tax, an appeal may be taken by either party to the controversy from

1 Estate of Cornell, 66 App. Div. 162, 73 N. Y. Supp. 32, order modified, 170 N. Y. 423, 63 N. E. 445. According to Commonwealth v. Coleman, 52 Pa. 468, administrators may appeal from the valuation on the personal estate but have nothing to do with the real estate; the heirs are the only persons who have a right to appeal from the valuation of the real estate.

2 Becker v. Nye, 8 Cal. App. 129, 96 Pac. 333; People v. Sholem, 238 Ill. 203, 87 N. E. 390; Estate of Blackstone, 69 App. Div. 127, 74 N. Y. Supp. 508.

The voluntary payment of the tax by a legatee, in compliance with the decree of the orphans' court fixing the amount thereof, will not bar the right of the commonwealth afterward to appeal from the decree for error in not requiring payment of the six per cent charge in addition: Appeal of Commonwealth, 128 Pa. 603, 18 Atl. 386. 8 Estate of Dingman, 66 App. Div. 228, 72 N. Y. Supp. 694. 4 Estate of Hull, 109 App. Div. 248, 95 N. Y. Supp. 819.

the judgment of the probate court to the court of common pleas.*

§ 301. Time for Appeal.-The time within which an appeal may be taken from an order or decree in inheritance tax proceedings varies in the different states. In Pennsylvania an appraisement and assessment becomes final and conclusive upon all parties if not appealed from within thirty days. In New York, where the state controller was not a party to proceedings in which it was determined that part of the estate was not subject to the transfer tax, he has three months in which to appeal from the surrogate's order.' Under the New York statute which forbids any court or judge from extending the time fixed by law within which an appeal may be taken, neither the appellate division nor the surrogate's court can extend the time prescribed by the transfer tax statute for appealing from an assessment.

§ 302. Notice of Appeal.—A statute which gives a right of appeal in inheritance tax proceedings necessarily implies notice. Under the New York statutes the notice must state the grounds upon which the appeal is taken, and no questions, other than those specified in the notice, can be considered by the appellate tribunal.10 This rule, however, is not inflexible.

Humphreys v. State, 70 Ohio St. 67, 101 Am. St. Rep. 888, 1 Ann. Cas. 233, 65 L. R. A. 776, 70 N. E. 957.

• Commonwealth v. Freedley, 21 Pa. 33.

Estate of Dingman, 66 App. Div. 228, 72 N. Y. Supp. 694.

8 Estate of Seymour, 144 App. Div. 151, 128 N. Y. Supp. 775. Estate of Beecher, 211 Pa. 615, 61 Atl. 252, holding that the thirty days' limitation of the right of appeal begins only from such notice.

10 Estate of Davis, 149 N. Y. 539, 44 N. E. 185; Estate of Manning, 169 N. Y. 449, 62 N. E. 565; Miller v. Tracy, 93 App. Div. 27, 86 N. Y. Supp. 1024; Estate of Stone, 56 Misc. Rep. 247, 107 N. Y. Supp. 385. The propriety of the appraiser's action in deducting the amount of a claim cannot be reviewed by the surrogate on an

On an appeal to a surrogate from the confirmation of an appraiser's report and from an assessment of the tax in conformity therewith, the appellants should be permitted to file additional allegations that since the appraisal litigation has been commenced to determine who are the heirs and next of kin of the decedent, thus creating a controversy which affects the title of the whole estate, although the sixty days allowed for an appeal have expired and the grounds specified in the notice of appeal do not include the matter of these allegations, it appearing that the litigation was not begun until the expiration of the time limited for an appeal. The surrogate should either postpone the appraisement until the litigation is determined, or at least receive and consider the proofs of the allegations." Where the state, or the prosecuting attorney in its behalf, takes the appeal, it may be done without filing the written notice of an intention to appeal provided by the Ohio statute.12

§ 303. Bonds or Undertaking.-When an appeal is taken by the state, or by an officer in its behalf, it is not required to give a bond or an undertaking. This has been decided in Illinois and Ohio.18

§ 304. Other Appellate Proceedings.-It has been said that inheritance tax proceedings, while special, are at law, and are not equitable in character; and that the rules applicable to appeals in law cases must

appeal from the appraiser's determination, where the item is not specified in the notice of appeal: Estate of Wormser, 51 App. Div. 441, 64 N. Y. Supp. 897.

11 Estate of Westurn, 152 N. Y. 93, 46 N. E. 315.

12 Humphreys v. State, 70 Ohio St. 67, 101 Am. St. Rep. 888, 1 Ann. Cas. 233, 65 L. R. A. 776, 70 N. E. 957.

13 People v. Sholem, 238 Ill. 203, 87 N. E. 390; Humphreys v. State, 70 Ohio St. 67, 101 Am. St. Rep. 888, 1 Ann. Cas. 233, 65 L. R. A. 776, 70 N. E. 957.