Citation Numbers: 67 N.Y.S. 795
Judges: Hatch
Filed Date: 12/31/1900
Status: Precedential
Modified Date: 11/12/2024
John Crerar, a resident of Chicago, died in that city -on October 19, 1889. He owned real property in this state, situate in the city of New York, known and designated in this proceeding as “91 John Street.” He also owned personal property, shown by the executor’s inventory filed in January, 1890, in the probate court of Cook county, 111., consisting of cash balances in banks in the city of New York amounting to about $7,500, stocks in New York corporations amounting to about $235,000, and an interest in the firm -of Morris K. Jessup & Co. The stock certificates and securities were kept in Illinois, at the testator’s domicile. On the 31st day of ■October, 1892, Crerar’s executors presented a petition to the surrogate of the county of New York, stating, among other things, that they were informed that a portion of the property of the estate was subject t'o the inheritance tax, and asking that a competent person he appointed as appraiser to value it. An appraiser was thereupon duly appointed, who gave notice to all interested parties, including the city comptroller, and, after appraising the property, reported, among other things, as follows: “I appraised certain real property •of said John Crerar, deceased, being all the property of decedent
The question is thus presented of the power and authority of the surrogate to amend an order in these proceedings, and of his jurisdiction to appoint an appraiser of the personal estate, under the existing circumstances. We have reached the conclusion that the surrogate had no jurisdiction or power to make either order. Courts have no general powers or jurisdiction in these proceedings. The only authority is to be found in the act itself. The jurisdiction is special, and specially conferred by the act. In re Pierson, 19 App. Div. 480, 46 N. Y. Supp. 557. We find no authority conferred by the statute to make either of the orders in question. There is an entire absence of authority to amend the order of December 19, 1892. There is no provision of the statute permitting the surrogate to amend any decree or order, even his own. The remedies provided by the statute ine force at the time the orders appealed from were
If we are right in our conclusions as to the power of the surrogate in these matters, it follows that the authorities cited by the respondent touching the general power and jurisdiction of surrogates have no application, and we do not discuss them.
It is contended that the provisions of the statute (section 230, c. 908, Laws 1896) which permits the surrogate upon his own motion, or upon the application of any party interested, including the comptroller of New York City, as often and whenever occasion may require, to appoint an appraiser, confers jurisdiction to make the order of the appraisal of the personal estate. We do not so regard it. We think it cannot be held to authorize a surrogate to make an appraisal of property which was owned by the executors, and which was subject to tax at the time the former appraisal was made, simply because that property was erroneously omitted from the appraisal. That section of the act applies to a case where the property has been subsequently discovered by the executors, or where the circumstances at the time of the appraisal were such that the value of the property, or the value of the taxable interest, could not be ascertained; in which cases it is made the duty of the surrogate to appoint a new appraiser to make a new appraisal under the new conditions. This in no wise authorizes a reappraisal or reconsideration of matters already passed upon. When the property is in the hands of the executors at the time of an appraisal, it is their duty to present it for appraisal, and if they do present it, and the surrogate erroneously declares it not to be taxable, the remedy is by appeal to the surrogate himself, and thence to the appellate division. ,
Eespondent insists that this personal estate was never brought to the attention of the appraiser; but we cannot agree with him. The only things disclosed by the record bearing upon that question are the report of the appraiser, and an affidavit of Wallace, who was an -attorney for the executors at the time of the application for appraisal. Wallace alleges, upon information and belief, that the only property belonging to said estate in the state of New York are the premises No. 91 John street. It does not appear what force or effect, or that any force or effect, was given by the appraiser to this affidavit. It is not recited in his report, nor otherwise referred to in any of the proceedings. It therefore rests upon the report to disclose what property was before him." The language of the report leads us to the conclusion that this personal estate was brought to the attention of the appraiser, and that he held that it was not tax
This conclusion is much strengthened by the fact that at the time this appraisal was made it was very generally believed,' and had in fact been held, that the only property of a nonresident which was taxable under the taxable transfer act was real estate, and that personal property, so far as it consisted of choses in action, was not taxable. This belief was not dispelled until the decision of the Bronson Case, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, in 1896; this court having held in that case that neither stocks nor bonds of a domestic corporation owned by a nonresident decedent, the bonds and certificates of stock being held at the domicile of the decedent, were taxable under that law. It seems clear that this property was brought to the attention of the appraiser, and that he held that it was not subject to the tax. The surrogate had no jurisdiction to cause it to be reassessed because it was erroneously held exempt, nor to have it reconsidered or again passed upon in any form.
It follows that the orders appealed from should be reversed, with $10 costs and disbursements, the motion to amend denied, and the motion to dismiss the proceedings granted, with $10 costs. All concur.