149 N.Y.S. 34 | N.Y. Sur. Ct. | 1912
This is a motion by the state comptroller to have the surrogate assess a tax upon the remainder after the life estate of Frances Pearsall Field in the residuary estate of the decedent. Under the provisions of decedent’s will this residuary estate was to be held in trust for the benefit of Frances Pearsall Field during her life, and upon her death the trustees were directed to divide it among her issue then surviving. The value of this life estate was ascertained by the appraiser who was designated to appraise the estate for the purpose of the transfer tax ;• but as the statute in existence at the date of decedent’s death provided that future or contingent estates should not be taxed until they vested in possession, he did not ascertain the value of the remainder after the life estate of Frances Pearsall Field, and the order entered upon his report did not assess a tax upon this remainder. It is alleged in the moving papers that Frances Pearsall Field died on the 21st day of July, 1907, leaving her surviving" four children and the child of one of her children who predeceased her. These children, therefore, became entitled to the possession of the remainder on the 21st day of July, 1907, and the tax upon their respective interests accrued upon that date.
“From such report of appraisal * * * the surrogate shall forthwith 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 they are liable without appointing an appraiser.”
There is nothing in these sections which limits the time within which the surrogate may designate an appraiser or assess a tax upon the appraiser’s report, or assess such tax upon his own motion without the appointment of an appraiser. The appraiser’s report in the estate of Phebe Pearsall having been duly filed in this court, the surrogate could, by virtue of the authority conferred upon him by section 231, of his own motion assess a tax upon the transfer of the remainder interests to the legatees who became entitled to such interest upon the death of the life tenant. If he could make such assessment upon his own motion, there does not appear to be any valid reason why he could not make it upon the motion of any interested party. Por the purpose of appraising estates and assessing a tax under the provisions of the Transfer Tax Law the state comptroller is made an interested party (section 230 of the Tax Law); therefore the surrogate may, upon the motion of the state comptroller as a party in interest, assess a tax upon the transfer of the remainder interest to the respective legatees under the will of the decedent. Section 235 of the Tax Law makes it the duty of the state comptroller to notify the district attorney of the refusal or neglect of parties liable to taxation to make such payment, provided that 18 months have elapsed since the accrual of the tax. It further provides that the district attorney shall apply to the surrogate for a citation directed to such parties to show cause why the tax should not be paid. To construe this section to mean that in all estates where the tax had not been paid within 18 months after the death of the decedent an appraiser could not be appointed by the surrogate upon the motion of an interested party or the tax assessed by the surrogate upon his own motion, and that the only method that could be pursued to ascertain the value of taxable interests or determine the tax upon said interests is by the state comptroller notifying the district attorney and the latter applying to the surrogate for a citation, would necessarily result in limiting the jurisdiction given to the surrogate by sections 230 and 231 to a period of 18 months after the death of the decedent or the accrual of the tax. But there is nothing m the language of this section to indicate that the Legislature intended any such restriction or limitation. The procedure prescribed by section 235 is essentially one