63 N.Y.S. 608 | N.Y. App. Div. | 1900
In 1896 an appraiser was appointed by the surrogate of Onondaga county to fix the fair market value of the estate which passed by the will of James Hardie, deceased, with a view to the imposition of the transfer tax (chapter 399, Laws 1892). A hearing was had before the appraiser, and his report was filed, and an order entered in the surrogate’s court on the 11th day of November, 1896, determining the value of the interest of each person liable to assessment, with the amount of the tax assessed. No appeal was taken from this determination of the surrogate. From the decree entered on the judicial settlement of the accounts' of the executors November 1, 1898, it appears that several legacies in the will of the testator had lapsed by reason of the death of the legatees prior to the decease of the testator. There was no residuary clause in the will, and the decree of the surrogate’s court adjudged that the lapsed portions of the estate passed under the statute of distribution. This added materially to the interest of the widow of the testator. The tax had been imposed and paid by the executor’s at 5 per cent, upon the shares of these collateral legatees; whereas, if the widow was chargeable with its payment, her tax was only at the rate of 1 per cent. On the 11th day of July, 1899, the executors of Hardie applied by petition to the surrogate’s court for a modification of the order fixing the amount of the transfer tax, and for a reduction of the same as to the widow’s share to 1 per cent, thereon. The widow was then dead, but the ground for the application was the excessive tax fixed as affecting her share. The comptroller appeared by counsel, and objected to the power of the surrogate’s court to modify the order, as the time to appeal had long since expired. Section 2481, subd. 6, of the Code of Civil Procedure vests the surrogate with power, among other things, "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, or other sufficient cause.” This power "must be exercised only in a like case and in the same manner” as a court "of general jurisdiction exercises the same power.” Upon an appeal the determination must be reviewed by the appellate court as if the application were originally made in that court. It was evidently designed to make the practice in opening the decrees of the surrogate’s court conform to that in courts of record.
The point is made that the only remedy by which the determination of the surrogate assessing tlxe tax can be reviewed is by the appeal prescribed by section 13 of the act referred to, and which limits the period to 60 days from the fixing of the tax by the surrogate. That is doubtless correct as to purely legal errors. The power given by the subdivision of the Code quoted from is entirely independent, however, of the right of appeal. The authority of a court to modify its own decrees for an ei’ror in fact, newly-discovered evi
The allegations in the petition in this matter are very meager,
So ordered. All concur, except McLEENAE, J., not voting.