1 Mills Surr. 520 | N.Y. Sur. Ct. | 1900
Mrs. Lansing died October 12, 1893. December 28, 1893, under an act then in force, in relation to taxation of estates of decedents (chap. 399, Laws of 1892), the surrogate of his own motion appointed an appraiser to ascertain and appraise the value of the decedent’s estate, subject to taxation, under this act. The appraiser so appointed, on due notice to all parties interested, including the county treasurer, entered on the discharge of his duties, and thereafter made his report to this court, with the evidence taken by him. From this report and evidence it appeared that the decedent and her brother, Edgar I. Truax, as the residuary legatees of their deceased father, Isaac I. Truax, owned or were entitled to quite a large personal estate; that on June 30, 1890, Mrs. Lansing and her brother, by a general assignment, pretended to convey to Bertha E. Lansing (now De Land), a daughter of Mrs. Lansing, all the personal property then owned by them jointly or severally, either individually or as executors of their father’s will; that their property at that time consisted of bonds and mortgages, moneys deposited in banks and some household furniture, all of which came to them under their father’s will, and a considerable part of which still stood in their names -as his executors. What was the amount of this property, Mr. Truax, the witness examined before, and the active executor of Mrs. Lansing’s will, refused to state, acting under the advice of counsel, who assumed the position that as all of Mrs. Lansing’s personal estate passed to her daughter Bertha by this assignment of June 30, 1890, as to which there could be, and was no suggestion that it was made in contemplation of death, the appraiser had no authority to inquire into that matter. It was admitted by counsel that the assignment was made to escape excessive and disproportionate taxation. The fact quite plainly appears that the assignment was for this particular purpose solely, because when a day after it was made it appeared from the opening of the 'assessors’ books that the property had been assessed by them at a
From this judgment an appeal has been taken to the Appellate Division, where it is still pending undetermined. Under this judgment, Mrs. Schwaman, if she eventually succeeds, will acquire, as a legatee under her mother’s will, not only the one-half of her mother’s interest in the bonds and mortgages embraced within the first tax proceeding, but also the one-half of the moneys deposited in the banks, originally to the credit of the estate of Isaac I. Truax, deceased, but transferred in October, 1893, to the credit of Edgar I. Truax and his- niece Bertha, which were not taxed in the first proceeding, because of the refusal of Mrs. Lansing’s acting executor to disclose the amount of such deposits, .and his claim that they were not part of Mrs. Lansing’s estate, as her interest therein had been' assigned by her on June 30, 1890, to her daughter.
Very shortly after Mrs. Schwaman recovered her judgment, and most likely in consequence thereof, the county treasurer made the present application, which has for its object the taxation of the property which- escaped taxation in the former proceedings, for the reason and in the manner stated. The order granted in the present matter is attacked by the executors of
By the act in force when Mrs. Lansing died, the surrogate,. “ upon the application of any interested party, including county treasurers, ... or upon his own motion, shall, as often, ■as and whenever occasion may require, appoint a competent person as appraiser, to fix the fair market value, at the time of the transfer thereof, of property of persons- whose estates shall be subject to the payment of any tax imposed by this- act,” etc. Chap. 399, Laws of 1892, § 11. This provision is re-enacted in the present Tax Law. Tax Law, § 230. The plain intent and object of the several statutes, imposing a special tax upon the right of succession to the property of a decedent, had been and is to impose such tax upon all property so acquired from the decedent, those persons and such, property as is exempted by the statute excepted. By all the statutes passed upon this subject this tax has been declared to be due and payable at the time of the death of the decedent, and, consequently, either by necessary implication, or by the express provisions of the several statutes, the appraisal of the property subject to the tax, was and is required to be made as of the date of the decedent’s death. In cases of testacy, however, it not infrequently happens that the testator, in the testamentary disposition of his property, creates future or contingent estates, the fair market value of which at his death it is impracticable to ascertain or fix; and in cases both of testacy and intestacy, it may also happen that, for other particular reasons, the value of property subject to the tax, cannot be then ascertained, as, for instance, if the title to it be then undetermined; so, also, quite often the personal representatives when tax proceedings
Overruling, therefore, the objection that the order of October 14, 1899, appointing an appraiser is without authority, we come to the question whether the former order of March 28, 1894,. taxing Mrs. Lansing’s one-half of the bonds and mortgages re-ported by the appraiser in that proceeding, is a bar to the present proceeding. The contention that the first appraisal, and the order made upon the report of the first appraisal, is an adjudication upon the question then presented to the surrogate for his decision is, we think, well sustained. It is settled that the surrogate, in these matters, is the taxing officer or assessor repre
Mrs. Schwaman and Mrs. De Land, who, with the State, are the only persons interested, were all parties to the first proceeding. The suggestion made by Mrs. Schwaman, in her affidavit, that she knew nothing of that proceeding is overthrown by the conclusive proof that she was duly served by the appraiser with notice of the hearing before him, and by the affidavit of the former surrogate that she was also served with a copy of his order of March 28, 1894. By this order the surrogate determined that so much of Mrs. Lansing’s estate as was invested in the bonds and mortgages reported by the appraiser, was taxable, notwithstanding the claim made by the executor in the interests of Mrs. De Land and of Mrs. Schwaman that it had been assigned to the former by the assignment of June 30, 1890. By not imposing any tax upon the other property, which the evidence, as then returned by the appraiser, disclosed, might have been owned at one time by Mrs. Lansing, the surrogate did, as counsel contended, inferentially decide that such other property was not then taxable. So far as concerned the property which has once been owned by Mrs. Lansing, and was then taxed by the surrogate, this was a practical recognition by him of the validity of the claim made by Mrs. Lansing’s executor before the appraiser, that the property was covered by the assignment of June 30, 1890. Both Mrs. De Land and Mrs. Schwaman, in whose behalf this claim was made, are to be deemed as having concurred in the position then taken for them, as they have accepted and enjoyed up to the present time the exemption secured thereby. Mrs. Schwaman, by action brought, by her, has since had it judicially declared that this assignment of June 30, 1890, and all other transfers by Mrs. Lansing to Bertha since that time, were void, so far as affected her (Mrs.
It follows from what we have said, that the motion to vacate the order of October 14, 1899, should be denied. As, however, it appears that an appeal has been taken from the judgment recovered by Mrs. Schwaman, and that the question of the validity of Mrs. Lansing’s assignment is still in litigation, the appraiser appointed by that order will suspend action under it until such litigation is finally concluded.
An order will be entered, denying the motion made to vacate the order, but without costs.
Motion denied, without cost.