Patterson, J.:
The children of Simon Wormser, deceased, appeal from an order of the surrogate of the county of New York fixing a transfer tax' u pon their -right of succession to the property of which their father died possessed, and from an order of said surrogate denying a motion made by them to remit a. penalty and for leave to reopen the matter after the surrogate had decided it, and to submit additional affidavits to him.. Simon Wormser, a resident of the county of New York, died intestate on the 30tli of July, 1895. Letters of administration upon his estate were not applied for until April, 1898. In March, 1897, a petition was presented by the proper authorities of the State of New York for the appointment of an appraiser under the provisions of the Transfer Tax Act. An appraiser was appointed. He proceeded to perform the duty required of him, and in March, 1898, filed his report. Both parties appealed to the surrogate from that report. In disposing of those appeals the surrogate made the decree from which the children of -, Simon Wormser alone now appeal. ' It is shown in the record that at the time of his death Simon Wormser had "in his individual name personal property of the value of $734,274. .He was then, and for many years had been, a member of the firm of I. & S. Wormser. The assets of that firm, at the time of Simon Wormser’s death, were worth $4,805,890. In estimating the value of the estate of Simon Worms.er. the appiaiser included the individual property mentioned and one-half of the., value of the firm assets, it being proven that Simon and Isidor *443Wormser were interested in those assets each to the extent of onelialf. . The appraiser deducted from Simon’s one-half interest the sum of $250,000, that being an allowance for a suggested compromise of an alleged but unproven claim of Isidor Wormser to the ■entire assets of the firm of I. & S. Wormser, a specific consideration of which claim will be made presently. He also deducted the sum of $923,205, the value, as he found it, of non-taxable securities in which that much of Simon Wormser’s interest in the firm’s assets was invested. He also deducted $150,000, that being allowed upon a claim against the firm of I. & S. Wormser asserted by the Union Pacific Railway Company. On the appeal of the Comptroller the surrogate disallowed the deduction of this item. The total ■amount of the taxable property of Simon Wormser, as found by the appraiser after making the deductions above referred to, was $1,841,514, from which was also allowed a deduction of $25,000 for the expenses of administration, leaving a net taxable estate of $1,816,514. Simon Wormser left no widow. His next of kin were four sons, and the taxable share of each son was found to' be •$454,128.50. By reason of the failure of the children of Simon Wormser to pay a transfer tax within the time required by section 223 of the Transfer Tax' Law, a penalty of ten. per cent became ■chargeable upon the amount of the transfer tax fixed upon the distributive share of each of the four appellants. Upon the filing of the appraiser’s report an application was made to the surrogate- to remit the penalty as imposed, for a reason which will be adverted to hereafter. That application was denied by the surrogate, and the present appeals bring up for consideration, among other things, his action in that regard.
As far back as March 27, 1877, I. & S. Wormser, then being copartners, entered into an agreement containing the following provision, viz., “ that all the real' and personal property, estate and effects heretofore held or now or hereafter held in the joint name or individual name of either of them, are held and owned by the' said Simon Wormser and Isidor Wormser jointly, whether the same has been or is in their joint names or name or in the individual name of either of - them.”
There are five subjects presented for our consideration upon this appeal: First. It is now urged that under the agreement of *444March 27, 1877, between Isidor and Simon Wormser, the entire-property of the latter passed in ownership to the former as survivor,, and that as a consequence there was no transfer tax imposed bylaw upon any right of succession to that property. The -surrogate did. not err in his construction of that agreement. There is nothing in its terms which necessarily leads to the conclusion that the survivor-of the two brothers should become entitled to- all the property of' both in absolute ownership; but the reasonable interpretation is,, that the property held by each individually should be regarded as-held in the same manner as if it-were cópartnersliipproperty. The-preamble of the. agreement states the inducement to'making .-that, agreement, which is, that Simon Wormser and Isidor had been for a long time past and were then jointly interested in both real and personal property, estate or effects, some of which had appeared or appears in- the individual name of one of them. The purpose of the agreement' seems, therefore, to be plain, viz,, that it was only the intention of the parties to bring, such property as might then or thereafter be held in the joint name or the individual name of either of -them into that joint ownership which is characteristic of a. copartnership relation. Ho implication cay. be made from- this-instrument that .it was the .intention of either of the parties to it that their respective children or families should be deprived of their inheritance. The copartnership agreement" between Simon and Isidor Wormser'provided that the assets.of the firm belonged one-half to .each; and Isidor Wormser, Jr., testified that after the death of Simon Wormser the share of the assets of the firm of which he> was a member and his individual assets were distributed among his-children,, share and share alike. This property was distributed as that of Simon Wormser, and the distribution must have been with the consent of Isidor Wormser, for all the'firm assets were under his control and in his possession as the sui-viving partner. '
Second. The surrogate was right in refusing to allow the sum of $250,000 or any amount for the alleged claim of Isidor Wormser to-the whole assets of the firm, by reason of his surviving his brother. ' The only evidence of the suggestion of suelva claim is. contained in the affidavit of an attorney-at law that Isidor Wormser was advised that, by the true construction of the agreement of 1877, he was entitled to claim as-survivor,, and that the children of Simon Woi'inser were *445also so advised. Isidor Wormser has not personally made proof ■of such a claim or insisted on it, and there is nothing whatever in the record to show that he intended to assert or insist upon it. Nor does any member of the Wormser family acknowledge such a claim. The appraiser was not justified in making an allowance on account of a demand neither urged by Isidor Wormser nor admitted by the ■children of Simon Wormser. Isidor Wormser permitted the distribution of the whole estate among the children of his deceased brother, as the property of that brother, whose right he did not ■dispute, hut evidently acquiesced in. There was no proper evidence •of the existence of the claim, and nothing upon which a deduction for it could be allowed.
Third. Concerning the item of $150,000, deducted by reason of the Union Pacific Railway claim, the decision of the surrogate was •erroneous. The determination of the appraiser in respect to that item was not before the surrogate for review on the appeal to him. The comptroller did not specify that item in his notice of appeal to the surrogate, and, therefore, that matter could not be made a subject of inquiry by him. (Matter of Davis, 149 N. Y. 540.)
Fourth. As to the application for the remission of the penalty, we see no reason for differing with the surrogate as to the conclusion •at which he arrived. The basis of an application for such a remission must be some sufficient, cause arising by reason of-claims made upon the estate, necessary litigation or other unavoidable cause of delay, preventing the payment of the tax. In the view we have taken of the matters hereinbefore referred to, we do not think it has been shown that any of the reasons required by the statute existed, causing .such a delay, as would have justified the remission of the penalty.
Fifth. The application to submit additional papers to the surrogate was denied in the reasonable exercise of his discretion.
The orders appealed" from must be modified in accordance with ■•the views expressed in this opinion, and as modified affirmed, without costs.
Van Brunt, P. J., . Rumsey, Ingraham and Hatch, JJ., •concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.