106 Misc. 710 | N.Y. Sur. Ct. | 1919
This is a motion to vacate and set aside an order of this court, dated the 14th day of June, 1918, which directed that the service of a citation without the state be made by delivering a copy thereof to John L. Severance and Elizabeth S. Allen, the persons named therein, and to vacate and set aside the citation and the service thereof in pursuance of such order. The motion is made by attorneys who appear specially for John L.g Severance and Elizabeth S. Allen (now Prentiss) for the purpose of the motion only. They contend that this court has no jurisdiction to grant the relief asked for in the petition upon which the citation was issued; that this court has no jurisdic
The petition upon which, the citation was issued was made by the comptroller of the state of New York, and the relief for which he prayed was that the order of this court assessing a tax upon the estate of the decedent herein be vacated and set aside, and that an appraiser be designated to reappraise certain assets of the estate, which he alleged were undervalued in the original tax proceeding. From the allegations of the petition and the records of this court it appears that the decedent died on the 25th of June, 1913, a resident of the county of New York, and that letters of admininstration upon his estate were granted by this court to his son, John L. Severance; that subsequently a proceeding v/as brought to assess a tax upon Ms estate in accordance with the provisions of the Tax Law of this state, and that John L. Severance and Elizabeth S. Allen, Ms only next of kin, voluntarily appeared before the transfer tax appraiser and signed an instrument by wMch they waived notice of the proceeding to determine the transfer tax upon his estate. The administrator, John L. Severance, executed several affidavits in tMs county in connection -with the appraisal of the estate by the transfer tax appraiser; he also verified in this county the schedules of assets and liabilities submitted to the appraiser. An order assessing a tax upon the estate of the decedent was made by this court on December 4, 1913. No appeal was taken from the order. The petition of the state comptroller to open and set aside the order fixing the
The first question presented by the motion is whether this court has power to open its order, entered more than four years before, and to grant a reappraisal of the assets of decedent’s estate. It seems to me that, irrespective of what the decisions of the federal courts may be in relation to opening their decrees, or what the decisions of sister states may be in relation to vacating judgments of their courts, the right of a surrogate’s court of this state to open and vacate its decree, although more than two years have elapsed since the entry of such decree, is no longer open to discussion or argument. Section 2490, subdivision 6, of the Code authorizes the surrogate “ to open, vacate, modify or set aside, or to enter as of a former time a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause.” This power has been exercised by the surrogates of this state on many occasions, and their right to exercise the power has been upheld by the appellate courts. In Matter of Henderson, 157 N. Y. 423, it was held that asurro
The next question presented by the motion' is whether the surrogate has power upon such an application to make an order directing the issuance of a citation and providing for the service of such citation upon necessary parties who reside without the state. The persons affected by the order sought to be opened are entitled to notice of the application to reopen it. The Tax Law does not prescribe the notice to be given in such cases. Neither does the Code of Civil Procedure. Section 1287 of the Code provides that notice to set aside a final judgment must be given to the adverse party, and it further provides that in certain cases such notice may be served upon the attorney of record of the party. It does not state how the notice shall be given or prescribe how service shall be made. It would seem, therefore, that the only essential requirement is that notice be given to the parties who would be
The proceeding to assess a tax upon the transfer of property is necessarily a proceeding in rem. This court has jurisdiction to assess such tax where a. decedent had his domicile in this state and died within this county. It has also jurisdiction to assess a tax where the decedent was a non-resident, but left real estate or certain personal property in this county. In the case of real estate the res is here and subject to ■ the jurisdiction of the court; in the case of certain personal property the state has dominion over the property and therefore has power to tax it. Blackstone v. Miller, 188 U. S. 189. In the matter now under consideration the court had jurisdiction to assess a tax upon the estate of the decedent because he had his domicile in this state and was a resident of this county at the time of his death. It did not lose jurisdiction because an order, assessing a tax upon the estate was entered, and the administrator, without a decree of this court, distributed the estate among non-resident next of kin. It did not originally acquire jurisdiction to assess a tax upon the estate of the decedent because of the voluntary appearance of the administrator or the next of kin before the transfer tax appraiser, as such jurisdiction was derived from the fact that the decedent had his domicile in this state and resided in this county at the time of his death; and it does not now require their voluntary appearance before it or the service of its process on them without the state in
The moving parties also contend that as the citation was directed to “ John L. Severance, as administrator,” while the petition of the state comptroller did not designate him as administrator, the citation as to him is invalid. The petition of the state comptroller alleged that letters of administration upoii the estate of the decedent were issued by this court to John L. Severance, of Cleveland, Ohio; it also alleged that John L. Severance, a son of the decedent, and Elizabeth S. Allen, and Sullivan & Cromwell, attorneys for the administrator, were the only parties interested in the proceeding. The order made in accordance with the prayer of the petition directed that a citation issue to “ John L. Severance as administrator of thé above named decedent’s estate, and Elizabeth S. Allen, they being all the parties interested herein.” The citation was directed to “ John L. Severance, administrator of the goods, chattels and credits which were of Louis H. Severance, and Elizabeth S. Allen, now Prentiss.” In the preliminary part of the order directing the service
The proceeding brought by the state comptroller to open the order fixing tax and for a new trial was properly commenced by a petition and citation. Code Civ. Pro. § 2518. The order directing that a citation issue upon that petition and that it be served upon the persons therein named who were non-residents of the state, and that personal service without the state be made upon them, was in accordance with the statutory requirements. Code Civ. Pro. § 2526. Service of the citation having been made in accordance with the order upon John L. Severance, as administrator of the estate of the decedent, it seems to me that this court gave him the necessary notice of the proceeding brought by the state comptroller to vacate the order fixing tax upon the estate of the decedent and to grant a new trial. As Elizabeth' S. Prentiss (formerly Allen), the other next of kin of the decedent, was personally served with citation while she was residing in the county of New York, the motion to set aside such service is' denied.
The motion to set aside the order directing the
Decreed accordingly.