82 A.D. 107 | N.Y. App. Div. | 1903
It appears that Stephen Ó. Dimon diéd on the 12th day of January, 1893,.and that the appellant, who is his nephew, took either by will or inheritance a one-sixth interest in his personal and real property. The other five-sixths went to the decedent’s brothers and sisters and its transfer to them is not taxable. The order appointing the appraiser to determine the value of the interest transferred to the appellant for the purpose of assessing the transfer tax was made on the 5th day of December,. 1894.; but the appraisal was deferred by consent owing to the fact that the estate was largely involved in litigation. The report, of the appraiser was filed on the 9th day of January, 1902, and. he finds the total value of the decedent’s- personal estate was $12,775.99 and that the total value of his real estate was $28,500. The appraisal in this regard is acquiesced in by all. The controversy is over the amount that- should be deducted for the expenses, of administration and commissions of the administrator. It was shown by affidavits, and undisputed, that the administrator has paid out and disbursed for undertaker’s bill, tombstone, doctor’s bills and legal services and disbursements in the administration proceedings, and in two actions brought against him ' as administrator and one brought by him in that capacity and for his commissions-, the sum of $11,091.47. The appraiser, instead of allowing and deducting this amount, fixed' the commissions of the administrator at $196.98' and the amount of debts, including undertaker’s bills, tombstone, doctor’s bills and. legal services, $3,077.01, making a total of $3,273.99, which, deducted from the total value of the personal estate, left the value of the net personal estate $9,502. The- appellant’s' interest in the personal estate was fixed at $1,583.66, being ©né-sixth of this amount, which, together with one-sixth of the value- of the real "estate,
In so far as the estate has not been administered at the time of the appraisal, we understand it to be the practice to estimate the unpaid debts and expenses of administration, and we deem that practice unobjectionable, provided the report and order reserve the right of those whose interests are assessed to a rebate in case it shall appear by the decree settling the accounts that the debts or expenses have been estimated too low and a provision for a further assessment — although perhaps this is not strictly necessary — if estimated too high.
The order should be reversed, with ten dollars costs and disbursements, and a new appraisal ordered.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and new appraisal ordered.