previously outlawed by the statute of limitations, passes nothing and the amount of such debt cannot be assessed for the tax.1

In England, however, under the legacy act the rule is different, and the forgiveness of a bond debt by will was held to be a legacy liable to the duty, and in one case where the testatrix generously provided in her will for the payment of all her husband's debts, the creditors were, nevertheless, compelled to pay the duty.3

Where, however, the legacy is a pure gratuity for services rendered testator without expectation of reward or compensation, it is taxable, and where a testatrix reciting that A. was indebted to her on bond declared that in case he made no demand against her estate for boarding her she bequeathed him the debt due by him and directed her executors to cancel the bond, the legacy is liable."

1 Stinger v. Com. 26 Pa. St. 429; see Williamson v. Naylor, 3 Y. & C. 208.

2 Atty.-Gen. v. Holbrook, 3 Y. & J. 114.

3 Foster v. Ley, 2 Scott, 438; Turner v. Martin, 7 DeG. M. &

G. 429.

4 Gibbons' Est. 16 Phila. 218.

5 Tyson's App. 10 Pa. St. 220.

CHAPTER VII.

SURROGATES, DISTRICT ATTORNEYS, REGISTERS, EXECU

TORS AND OTHER OFFICERS

§1. Surrogates, district attorneys, registers and appraisers. 2. Executors, administrators and trustees.

3. Liability of executors, administrators, trustees, heirs and legatees inter se.

4. Compromises between executors and legatees.

§ 1. Surrogates, district attorneys, registers, appraisers. Under collateral inheritance, legacy and succession tax laws various powers, duties and liabilities in connection with the assessment, collection and payment of the tax are imposed upon surrogate or probate courts, district attorneys, registers, executors, administrators, trustees, appraisers and other persons and officials, which it is proposed to consider in the present chapter. As these duties are principally statutory, some of the provisions of law relating thereto may be consulted in the Appendix.

Questions concerning the appraisement or valuation of estates subject to the tax have been treated separately, and proceedings regarding the remedy and practice to be pursued under these acts have been reserved for the last chapter.2

Surrogates' courts in New York are constitutionally empowered to hear and determine all questions

relating to the estates of decedents arising under these statutes,1 and it would appear that exclusive jurisdiction, in the first instance, has been conferred upon the surrogate to appoint the appraiser who is to value the taxable property, and upon his report to assess, fix and determine the liability of property to this tax, and to enforce payment thereof, subject to review by appeal, as in other cases.'

The surrogate first acquiring jurisdiction under the act retains such jurisdiction throughout all proceedings, even as to real estate situate in another county, hence the tax should be paid in the county where jurisdiction is first acquired.3

Subject to the right of review by appeal, the surrogate is deemed to be the superior authority upon all questions, including that of the value of the estate which is subject to the tax. He is not bound by the appraiser's report, or by the facts which appeared before him, but he may hear such new evidence and statements as may be properly presented.5

His decree does not conclude or bind the State or any of its officials or parties interested therein, unless

2

1 Matter of McPherson, 104 N. Y. 323, 324.

Appendix, L. N. Y. sec. 15; Matter of McPherson, supra. See U. S. v. Trucks, 27 Fed. Rep. 541; Central Trust Co. v. Railroad Co. 15 N. Y. St. Rep. 180; reversed on another point, 110 N. Y. 250; Anderson v. Anderson, 12 Id. 104, 113; see Chapter V, sec. 5.

3 Matter of Keenan, 1 Con. Surr. Rep. 226; Est. of Keith and Daily, 22 N. Y. St. Rep. 337.

• Matter of Astor, 6 Dem. 402; Matter of Frowe, 20 N. Y. St. Rep. 355; s. c. Frazer v. Peo. 6 Dem. 174. See Stinger v. Com. 26 Pa. St. 424; Strode v. Com. 52 Id. 186.

• Matter of McPherson, supra, 323; Est. of McGowan, N. Y. Law Jour. July 30, 1890, and supra, p. 151.

they were duly notified and had an opportunity to be heard. It is conclusive, however, upon the rights of an adopted son, who had legal notice of the appraisement, and the decree is unaffected by a subsequent change or amendment of the law.

No proceeding will be made by the surrogate of his own motion to enforce payment of the tax until the expiration of eighteen months from the decedent's death.8

He has power to enforce his decrees under these statutes by such proceedings and methods as are provided for the enforcement of the usual decrees of his court.1

Against persons interested in the property liable to the tax other than executors, administrators and trustees, the surrogate has the power, on return of an execution issued on his decrees, to enforce it by proceedings for contempt;5 but execution should first is

sue.

As to executors, administrators and trustees, application for an order directing them to pay the tax may be made to the surrogate without leave.

1 Chapter VIII, sec. 1. See post, p. 208; Matter of McPherson, supra; Matter of Vanderbilt, 10 N. Y. Supp. 239.

2 Matter of Miller, 6 Dem. 119; affd. 47 Hun, 394; 110 N. Y. 216; Matter of Astor, 6 Dem. 408; Matter of Kemeys, 56 Hun, 117. As to adopted children, see Chapter III, sec. 6; Chapter VIII, sec. 4.

3 Matter of Astor, supra.

Matter of McPherson, 104 N. Y. 323.

5 Matter of Prout, 19 N. Y. St. Rep. 318; s. c. 3 N. Y. Supp. 831; Estate of Gilman, 6 Dem. 358; Code Civ. Proc. sec. 2555; Matter of Vanderbilt, 10 N. Y. Supp. 239.

6 Matter of Prout, supra.

So it would appear that the surrogate has power to order a reference in these proceedings upon any disputed questions of fact, or to determine them himself, affording the parties the right of examination and cross-examination, or the submission of such proof as he may deem proper. But it is doubtful whether the surrogate has any jurisdiction to compel a legatee to repay an executor for taxes paid by the latter for the legatee's benefit.2

It is held that he has no jurisdiction to determine the liability of an executor to pay the tax on motion of the executor, but only by proceedings instituted by the district attorney, as provided by the statute.3

Upon this subject the law of New York' provides in effect that whenever the comptroller or county treasurer of any county shall have reason to believe that any tax is due and unpaid after the "refusal or neglect" of the persons interested in the property liable to said tax to pay the same, he shall notify the district attorney of the proper county, in writing, of such failure, and the latter, if he have probable cause to believe a tax is due and unpaid, shall prosecute

1 See Matter of Pearsall, 21 N. Y. St. Rep. 305; Code Civil Proc. sec. 2546; Matter of McPherson, 104 N. Y. 323; Matter of Astor, 6 Dem. 416. See this case for rules established by the surrogate of N. Y. county under this act.

2 See Matter of Underhill, 117 N. Y. 471; Matter of Keech, N. Y. Law Jour. May 7, 1889; affd. 32 N. Y. St. Rep. 227.

Matter of Farley, 15 N. Y. St. Rep. 729; Matter of Arnett, 49 Hun, 599; Matter of Jones, 5 Dem. 30; Matter of Vanderbilt, supra.

Appendix, secs. 16, 17.

As to meaning of the term "persons interested," see Matter of Arnett, supra; Matter of Wagner, 119 N. Y. 32.