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See notes under § 220.

Appraisal for purpose of taxation under the act of 1892 must state the whole value of each legacy or distributive share without deduction. Estate of Millward, 7 Misc. 425; 57 N. Y. St. Repr. 833; 27 N. Y. Supp. 286 (1894).

It is the duty of a surrogate, and not of an appraiser, to determine exemptions. Estate of Vanderbilt, 10 N. Y. Supp. 239, overruled on another point in 127 N. Y. 1 (1890); Matter of Astor, 6 Dem. 417 (1888).

Under Laws 1892, chap. 399, the appraiser has no authority to deduct debts of the decedent, funeral expenses or expenses of administration, etc. Such deductions are to be made by the surrogate. Matter of Ludlow, 4 Misc. 594 (1893).

The surrogate may, in fixing the value, allow the debts of the decedent to be deducted from the value of the estate, and also commissions, funeral expenses, and expenses of administration, but not a disputed claim. Estate of Millward, 7 Misc. 425; 57 N. Y. St. Repr. 833 (1894).

Where certain specific articles are bequeathed to several persons, some of whom are exempt from legacy tax, the tax should be assessed only to the beneficial interests which are not exempt, and not upon the whole gift. Matter of Swift, 47 N. Y. St. Repr. 47 (1891).

A bequest of the income of a fund whose present value does not exceed $10,000 is exempt from the transfer tax. Matter of Hoffman, 62 N. Y. St. Repr. 245 (1894).

Where decedent, who died in 1887, created several life annuities, conditioned upon annuitant's surviving his wife, such annuities were not presently taxable under Laws 1887, chap. 713. Matter of Roosevelt, 62 N. Y. St. Repr. 130; 143 N. Y. 120.

An executory devise limited upon a gift for life, with power of disposal for the use and enjoyment of the first taker, is not capable of appraisal during the existence of the life estate. Matter of Cager, 111 N. Y. 343; S. C., 19 N. Y. St. Repr. 497 (1888).

It is the cash value of the property given at testator's death, and not the present value of the legatee's expectancy, which is to be appraised. In re Leavitt's Estate, 4 N. Y. Supp. 179; S. C., 22 N. Y. St. Repr. 81 (1889). In appraising a life estate the value should be computed according to the rules of the Supreme Court establishing the mortality tables. Matter of Robertson, 5 Dem. 92 (1887).

Where an annuity was left for life to one exempt from inheritance tax, and after his death on one not exempt, it was held, under Laws 1885, chap. 483, that the contingent remainder was not taxable until the death of the life tenant determined to whom it would pass. In re Clark's Estate, 22 N. Y. St. Repr. 354; S. C., 5 N. Y. Supp. 199.

Where the use of the entire estate is given to the widow, for life, and of only one-half thereof in case of remarriage, the value of her estate or of the remainder cannot be ascertained until her death or remarriage. Estate of Millward, 7 Misc. 425; 57 N. Y. St. Repr. 833 (1894).

Where several nephews and nieces took vested remainders at the death of testator, subject to widow's life estate, and the payment of certain annuities after death, it was held that the value of the remainder could not be ascertained until after the widow's death. Matter of Roosevelt, 59 N. Y. St. Repr. 100 (1894).

A remainder given by will subject to a prior trust, for the life of another beneficiary who was entitled, in the discretion of the trustee, to annual payments of portions of the principal, cannot be appraised and taxed during the life of the first legatee. Matter of Hopkins, 6 Dem. 1 (1887). A contingent remainder is not to be appraised or taxed until the defeating contingency has been rendered impossible. Matter of LeFevre, 5 Dem. 184 (1887).

A contingent remainder, where its devise works a vested though defeasible interest in the remainderman upon testator's death, notwithstanding possession, does not pass until death of the life tenant, is not taxable under the act of 1892, where the death of the testator occurred prior to the enactment of the statute. Matter of Seaman, 69 N. Y. St. Repr. 316 (1895).

A devise of the remainder after a life estate, if the remainderman be then living, with limitation over, in case of his not living at that time, is not taxable during lifetime of the life tenant. Matter of Wescott, 67 N. Y. St. Repr. 414 (1895).

As to taxing remainders, see Matter of Davis, 91 Hun, 53 (1895).

The amount of the collateral inheritance tax on a life estate should be taken out of the income. Matter of Johnson, 6 Dem. 146 (1887). Where such life estate is exempt and the remainder subject to the tax, such tax may be deducted from the principal of the legacy, although it will result in reducing the income payable to the exempt life tenant. Id.

It seems that an assessment of a tax upon the legacy of an adopted daughter made after Laws 1887, chap. 713, exempting such legacies from taxation, went into effect, is unauthorized. Matter of Surrogate of Cayuga County, 46 Hun, 657 (1887).

The fact that a will charges the payment of all the taxes upon the residuary estate does not authorize the deduction of that amount in appraising the residuary legacy. The appraiser should report the value of all legacies irrespective of any direction in the will. Matter of Swift, 47 N. Y. St. Repr. 47; affirming 2 Connoly, 644; S. C., 16 N. Y. Supp. 193 (1891).

In assignment of legacy, the amount paid by the assignee to the legatee is not the proper basis for the assessment of the transfer tax; such right is based upon the existence of assets in hands of executor. Matter of Weed, 66 N. Y. St. Repr. 137; 10 Misc. 628 (1894).

In determining, for purpose of taxation, the value of the residuary estate, appraiser is not justified in deducting the amount of the tax on legacies directed to be paid free of tax, and which is directed to be paid as an expense of administration. Matter of Swift, 47 N. Y. St. Repr. 47 (1892).

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The district attorney may appear on behalf of the people, in a proceeding to collect a collateral inheritance tax, because he represents a creditor or a person interested in the estate." Matter of Arnett, 49 Hun, 599 (1888). See Code Civ. Pro., § 2731.

The fees of the appraisers must be adjusted by the surrogate before the executor or administrator is required to pay them. They have no right to demand or receive more than the statute allows, unless the parties interested consent. Matter of Harriot, 65 N. Y. St. Repr. 528; 145 N. Y. 540 (1895). See, also, Code Civ. Pro., § 2711 as amended in 1893; Penal Code, § 48c, amended Laws 1893, chap. 692, ante.

Policies of life insurance payable to the decedent, his executors, etc., or to his personal representatives, are subject to appraisal for taxation under the collateral inheritance act. Matter of Knoedler, 140 N. Y. 377; 35 N. E. Repr. 601; 55 N. Y. St. Repr. 666 (1893).

Where a testator's residuary estate includes a note of the legatee, its amount should be included in assessing the legacy tax. In re Twigg, 15 N. Y. Supp. 548 (1891).

In absence of express direction to the contrary in the will, the devisee of land which is subject to a mortgage takes its cum onere. Matter of Keene, 60 N. Y. St. Repr. 163; 8 Misc. 402 (1894).

§ 232. Determination of surrogate.- The report of the appraiser shall be made in duplicate, one of which duplicates shall be filed in the office of the surrogate and the other in the office of the state comptroller. From such report and other proof relating to any such estate before the surrogate, the surrogate shall forthwith, as of course determine the cash value of all estates and the amount of tax to which the same are liable; or the surrogate may so determine the cash value of all such estates and the amount of tax to which the same are liable, without appointing an appraiser. The superintendent of insurance shall, on the application of any surrogate, determine the value of any such future or contingent estates, income or interest limited, contingent, dependent or determinable upon the life or lives of persons im being, upon the facts contained in any such appraiser's report, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct. The comptroller of the state of New York or any person dissatisfied with the appraisement or assessment and determination of tax, may appeal therefrom to the surrogate within sixty days from the fixing, assessing and determination

of tax by the surrogate as herein provided, upon filing in the office of the surrogate a written notice of appeal, which shall state the grounds upon which the appeal is taken. The surrogate shall immediately give notice, upon the determination by him as to the value of any estate which is taxable under this article, and of the tax to which it is liable, to all parties known to be interested therein, including the state comptroller. Within two years after the entry of an order or decree of a surrogate determining the value of an estate and assessing the tax thereon, the comptroller of the state may, if he believes that such appraisal, assessment or determination has been fraudulently, collusively, or erroneously made, make application to a justice of the supreme court of the judicial district in which the former owner of such estate resided, for a reappraisal thereof. The justice to whom such application is made may thereupon appoint a competent person to reappraise such estate. Such appraiser shall possess the powers, be subject to the duties and receive the compensation provided by sections two hundred and thirty and two hundred and thirty-one of this article. Such compensation shall be payable by the county treasurer or comptroller, out of any funds he may have on account of any tax imposed under the provisions of this article, upon the certificate of the justice appointing him. The report of such appraiser shall be filed with the justice by whom he was appointed, and thereafter the same proceedings shall be taken and had by and before such justice as are herein provided to be taken and had by and before the surrogate. The determination and assessment of such justice shall supersede the determination and assessment of the surrogate, and shall be filed by such justice in the office of the state comptroller.

[Revisers' Note.-L. 1892, chap. 399, § 13, as am. by

L. 1895, chap. 556.

The provision that appraisers' reports shall be made in duplicate, and one of them filed in the office of the comptroller, is new.]

See Forms Nos. 36-39.

A confirmation by the surrogate of the report of an appraiser is an adjudication which will protect the executors paying over legacies not assessed, and the State must look to omitted legatees for unpaid taxes. Matter of Vanderbilt, 10 N. Y. Supp. 239; partially overruled on other grounds in Matter of Vassar, 127 N. Y. 1 (1890).

Acceptance by the comptroller of the tax on certain legacies will not estop them from objecting as to other legacies that proceedings are defective by reason of failure to give him notice. In re Wolfe, 15 N. Y. Supp. 539 (1891).

An order for the payment of a collateral inheritance tax cannot be enforced by proceedings for contempt before the return of an execution on the surrogate's decree. In re McPherson, 104 N. Y. 306; Estate of Gilman, 6 Dem. 358. See, also, Laws 1885, chap. 483, § 16; Code Civ. Pro., § 2553, 2554, 2555.

Where persons are exempt because of relationship, or that they receive less than $500, it is error to make an aggregate valuation, including such property as subject to tax. Matter of Swift, 47 N. Y. St. Repr. 47 (1892).

Laws 1885, chap. 483, §§ 13, 15, conferred upon the surrogate the powers of an assessing and taxing officer; and, therefore, the State was bound by his determinations relating to the tax, whether or not any State official had been notified of the proceedings for its assessment. Matter of Wolfe, 29 Abb. N. C. 451; S. C., 137 N. Y. 205; 50 N. Y. St. Repr. 406; reversing 29 Abb. N. C. 340; S. C., 66 Hun, 389; 50 N. Y. St. Repr. 115; 21 N. Y. Supp. 215 (1893).

§ 233. Surrogate's and district attorney's assistants in New York city and Erie county. The comptroller of the city and county of New York shall retain, out of any funds he may have in his hands on account of said tax, a sum of money sufficient to provide the surrogates in the city and county of New York with an assistant, appointed by said surrogates, who shall be known as the transfer tax assistant, whose salary shall be four thousand dollars a year; a transfer tax clerk, whose salary shall be two thousand four hundred dollars a year; an assistant clerk, whose salary shall be one thousand eight hundred dollars a year, and a recording clerk, whose salary shall be one thousand three hundred dollars a year, said salaries to be paid monthly; and a▾ further sum of money, not exceeding five hundred dollars a year, to be used to pay the expenses of the said surrogates, necessarily incurred in the assessment and collection of said tax, said amounts to be paid upon the certificates and requisitions of said surrogates respectively. The comptroller of the city and county of New York shall also retain, out of any funds he may have in his hands on account of said tax, a sum of money sufficient to provide the district attorney in the city and county of New York with an assistant, appointed by said district attorney, who shall

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