Matter of the Estate of JOHN CRERAR, Deceased.

(Surrogate's Court, New York County, Filed May, 1900.)

1. TRANSFER TAX-STATUTE OF LIMITATIONS.

The transfer tax is laid upon the devolution of property and not upon the property itself, and, therefore, neither the two year nor six year Statutes of Limitation are a defense to a proceeding to collect the tax.

2. SAME-Discharge of EXECUTORS IN FOREIGN STATE DOES NOT PRECLUDE SUBSEQUENT APPRAISAL.

The fact that the executors of a non-resident decedent have already been discharged in the State of his domicile, does not affect the jurisdiction of a surrogate to entertain a proceeding brought by the State Comptroller to tax taxable assets of the decedent located in the State of New York which have never been taxed.

3. SAME

FORMER ADJUDICATION AS TO REALTY TAX DOES NOT PRECLUDE APPRAISAL OF UNTAXED PERSONALTY.

An adjudication in this State relative to the transfer tax, expressly limited to real estate, is not a bar to a subsequent proceeding brought by the State to tax personalty not disclosed on the first appraisal. 4. SAME-TAXABLE PENSONALTY OF NON-RESIDENT.

Shares held by a non-resident decedent in domestic corporations and his interest in firms doing business in the State of New York are taxable upon the second appraisal.

Revd. 56 App. Div. 479.

Application by the executors herein to dismiss the proceeding instituted by the comptroller to determine the Transfer Tax.

Emmet R. Olcott, for Comptroller; Ritch, Woodford, Bovee & Wallace, for executors.

FITZGERALD, S.-Application is made by the executors to dismiss the proceeding instituted by the comptroller to determine the transfer tax. The grounds alleged for the application are as follows: First. Lack of jurisdiction. Second. Because more than six years have elapsed since the death of the decedent. Third. Because more than two years have elapsed

since the entry of the decree of the surrogate. Fourth. Because of laches of comptroller in not moving for reappraisal before the discharge of the executors. Fifth. Because the executors have been duly discharged by a court of competent jurisdiction in the State of Illinois, whose judgment is entitled to full faith and credit in the courts of this State by virtue of the Constitution of the United States. So far as the application is based on the Statute of Limitations, the decision in the Estate of Vanderbilt, 10 N. Y. Supp. 239, is controlling. The discharge of the executors in a foreign State before the payment of the tax in this State is no defense. Estate of Fitch, N. Y. L. J., October 5, 1899; Matter of Embury, 19 App. Div. 214, affd. in the Court of Appeals, 154 N. Y. 746; Matter of Hubbard, 21 Misc. Rep. 566. The executors also claim that the attention of the appraiser was not called to the personal property, because the prevailing opinion of the legal profession at that time, and the decisions of the highest courts in the State, were against the taxability of such property belonging to non-resident decedents. This contention is without foundation. The following decisions held taxable property of the character now admitted to have been in the possession of the executors at the time of the appraisal: Estate of Morijon, N. Y. L. J., July 3, 1891; Estate of Romaine, 127 N. Y. 80; Matter of Vinot, 7 N. Y. Supp. 517; Matter of Clark, 9 id. 444; Matter of Bondon, N. Y. L. J., March 1, 1892. The James case, 144 N. Y. 6, was not decided by the Court of Appeals until November 27, 1894, long after the appraisal had terminated, and that case related exclusively to the stocks of foreign corporations, the stocks owned by this decedent being those of domestic corporations. Matter of Schermerhorn, 38 App. Div. 350, to which my attention has been called by the attorney for the executors since the submission of this matter, has no bearing upon the question at issue here. In the present case the State asks for an appraisal of assets which have never been submitted for ap

praisal. In the Schermerhorn case the petitioner sought to set aside a decree of the surrogate which held that assets were taxable which the courts have since declared to be exempt. In that case the assets had all been exhibited for appraisal, had had their day in court, and the error of law committed by the court in approving their appraisal for taxation should have been corrected by appeal. In Matter of Wallace, 28 Misc. Rep. 603, the same is true. The assets had been exhibited and appraised, and the errors alleged to have been made could have been cor rected by appeal, the time to make which had expired. The decision of the Court of Appeals in Matter of Wolfe, 137 N. Y. 205, is cited as authority for the proposition that the order of December, 1892, is an adjudication which, unless it is set aside, bars all further proceedings. In that case the surrogate made an order assessing the tax upon various legacies, but reserved the question of liability to taxation of the property included in two certain bequests for further consideration, and fixed a future day for a hearing thereupon. Copies of the appraiser's report and of the surrogate's order were thereafter served upon the comptroller of the city. The surrogate made an order adjudging, among other things, that the legatees in question were exempt from taxation under the act. The executors, relying upon such order, paid the legacies in full. Thereafter the district attorney commenced a proceeding to collect the tax, and the legatees pleaded the prior order as res adjudicata. The decision of the surrogate was based upon the failure to notify the comptroller of the city of New York of the proceedings, and at General Term the decision was based upon the lack of jurisdiction of the surrogate to adjudicate an exemption from the tax except in a proceeding instituted by the district attorney. The Court of Appeals overruled both the surrogate and the General Term, and held that the proceeding in which the exemption was declared was complete, and that the State was barred thereby. The difference between the two cases is distinct and radical.

In the Wolfe case the precise question of the liability of the bequests sought to be taxed in the district attorney's proceeding had been determined and the time to appeal had expired. In the case at bar the appraisal was limited to real estate; the personal estate was expressly eliminated, and the receipt issued stated in terms that it was on account of the tax. The existence of the personalty was not disclosed on the appraisal, nor was any reference made thereto in the order. The provision of the act that an appraisal may be had as often as and whenever occasion may require, is intended for just such cases as the one at bar. Among other assets of the estate was an interest in certain firms doing business in this city. It frequently happens that years elapse after the death of a decedent before an approximate estimate of the value of the share of the estate in such an enterprise can be made. Meanwhile, for the purpose of transferring real estate, an appraisal, limited to certain assets, may be had, but to hold that such limited appraisal can be successfully invoked as a bar to another proceeding, particularly where the first appraisal is expressly confined to certain assets, is opposed to reason and inconsistent with the scheme of the act. The motion to dismiss the proceeding is denied.

Motion denied.

Matter of Judicial Settlement of the Account of the Adminietrator, etc., of MARY M. WHITE, Deceased.

(Surrogate's Court, New York County, Filed May, 1900.)

ADMINISTRATION-PRESUMPTION OF DEATH-EVIDENCE.

Where a person has emigrated from a foreign country, without intending to return there, a presumption of his death does not arise until inquiry has been made for him at his last known place of residence in this country.

Proceedings upon judicial settlement of the accounts of an administrator.

Julian B. Shope, for alleged next of kin, claiming a share of estate; John Whalen, Corporation Counsel (Charles A. O'Neil, of counsel), for public administrator.

FITZGERALD, S.-The deceased died about December 3, 1885, intestate, leaving certain personal property. Letters of administration were issued to the public administrator on January 9, 1886, and on January 27, 1891, the account of said adminis trator was duly settled and decree entered whereby the sum of $1,530.90 was directed to be paid to the city chamberlain. The petitioners herein reside in Ireland, and are two brothers and two sisters of Edward Malone, who, it is claimed, was the father of the decedent, and who died before decease of said Mary M. White. Said petitioners ask that a distributive share of the said sum in the hands of the city chamberlain, due them as next of kin, be paid over to them. Decedent was Mary Malone, daughter of Edward Malone and Bridget, his wife, whose maiden name was White, and the said decedent assumed the name of White, and was known in Ireland as Mary White, and in this country as Mary M. White. The said deceased never married, and had a brother named John Malone. It is admitted that the deceased came to this country in 1851. At the time of making a deposit in the Seamen's Bank for Savings, in 1868, said decedent stated that she had a brother John and no sisters. There is no evidence that said brother has been sought in this or in any other country, and the sole testimony in this matter was that no inquiry was made for said John Malone, at the last known place of residence of said deceased. The interrogatories and cross-interrogatories seem to identify the deceased as Mary Malone, of Raheen, Kilcooney, county of Kings, Ireland, whose parents died during the famine and who came