33 N.Y.S. 382 | N.Y. Sup. Ct. | 1895
The plaintiff, who was appointed by the court to execute a trust created by the last will and testament of William G. Breese after the trustees named in the will had either died or been removed, commenced this suit, in which he asks for a construction of a certain provision of the will, and the direction of the court concerning it; that it be ascertained what persons are entitled to share in the trust estate, and their proportions; .requests a settlement of his accounts, and that he be discharged as trustee, with an allowance for commissions, costs, and disbursements; and that the court ascertain whether the trust fund is subject to a collateral inheritance tax under the statute of the state of New York. To so much of the complaint as seeks the judgment and direction of the court relating to the question
It will be observed that the demurrer does not present the question whether this case is of such a character as that a court of equity will take jurisdiction of it for the purpose of construing the will. And therefore the learned judge at special term proceeded, in the disposition of the question submitted, upon the view that, the court having obtained jurisdiction for the special purpose of construing certain provisions of the will, it is within its province to retain the case for all purposes necessary to a complete adjustment of the entire controversy. It is the general rule that, where this court has concurrent jurisdiction with the surrogate’s court, it will decline to take it, unless for the purpose of affording special relief beyond the power of the surrogate’s court. But, if a case be presented which calls upon it to exercise its jurisdiction, it not unfrequently assumes jurisdiction of all matters either in controversy, or necessarily connected with it, and decrees a settlement and distribution of an entire estate. Wager v. Wager, 89 N. Y. 161; Anderson v. Anderson, 112 N. Y. 115, 19 N. E. 427; Sanders v. Soutter, 126 N. Y. 193, 27 N. E. 263. In connection with this rule, attention was given to the proposition, equally well established, that in the absence of words of exclusion the conferring of jurisdiction upon one court does not operate to oust other courts before possessing it, for the reason that concurrent jurisdiction is not inconsistent. Cooke v. Bank, 52 N. Y. 106. The courts have been frequently called upon to reassert this proposition in cases where jurisdiction has been conferred upon surrogates’ courts, by statute, to perform certain duties which the supreme court had jurisdiction to perform. Widmayer v. Widmayer, 76 Hun, 251, 27 N. Y. Supp. 773; Royce v. Adams, 123 N. Y. 402, 25 N. E. 386. Section 2817 of the Code of Civil Procedure confers upon the surrogate’s court jurisdiction to remove
Both of the cases cited supra are authority for the proposition that the supreme court will not attempt to draw to its jurisdiction questions remitted to a competent and sufficient authority by express command of a statute, which, in addition, establishes the procedure by which the rights of persons interested are to be affected.
For the purposes of the discussion next to be had, however, we shall only remember the rule established by the cases of Widmayer v. Widmayer and Boyce v. Adams, supra. .Starting with the proposition, which was not challenged by the demurrer, that the complaint presented a case which called upon the court to take jurisdiction of the principal question, and having in mind the rule that in such a case the court may go on to a complete adjudication, although the surrogate’s court may have concurrent jurisdiction' of incidental questions involved, the conclusion was reached that the demurrer was not well taken. But the argument advanced in support of this conclusion entirely omits consideration of the relation of the surrogate to the tax. It assumes that authority was conferred upon the surrogate’s court, in the first instance, to ascertain and determine judicially the amount of the tax, if any, to be paid; and upon that premise, considered with the fact that the statute does not in terms exclude any other court, it is argued that the supreme court, being a court of general jurisdiction, may also assess and determine the tax, if incidental to a complete determination of an estate of which it has taken jurisdiction for some special reason. The premise, however, is faulty, in that the statute does not confer jurisdiction upon the surrogate’s court, as such, in the first instance, to assess and determine the tax. The surrogate, as a taxing officer, after the appraiser has appraised the property, enters his order fixing the tax “as of course',” and thereafter any person aggrieved may appeal therefrom to the surrogate. By both the initial act of 1885 and the subsequent one of 1892, a special state tax, not belonging to the system of general taxation, was created. In character, it was so entirely different from the general plan of taxation that special agencies were necessary for its enforcement. What those agencies should be, and under what
“As I read, the provisions of this act, I think we must differ with the "conclusions below, and that the proper construction of this act makes of the surrogate the assessing and taxing officer, and as such the representative of the state for the purposes relating to the appraisement and taxation of property. - * * * When we read all of the provisions of this act, it is perfectly apparent that a special system of taxation was created for the benefit of the state, with all the necessary machinery for its working, the control with respect to which was vested in the surrogate’s court, with a jurisdiction exclusive in its nature. In the assessment of a tax upon property passing by will or by the intestate law, the responsibility is imposed by the law upon the surrogate. He acts for the state, and he is commanded to assess and fix the tax to which the property is liable. * * * I can see no difference between the principle upon which the surrogate acts in proceeding to assess property for taxation under the act, and that upon which, in the general system of taxation in the state, tax assessors act in the assessment of persons or property for purposes of taxation. It is well settled, as to them, that in their proceedings they must determine the question of liability to taxation as a fact which gives them jurisdiction to assess. It is not 8nly an important, but it is a conditional, step in the proceedings for the assessment.”
In Re Ullmann, 137 N. Y. 406, 33 N. E. 480, the court, after quoting the fifteenth section of the act of 1885, which read, “The surrogate’s court shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act,” said:
“Aside from the ordinary jurisdiction of the surrogate, this is a special grant of power, in broad and comprehensive language; and there can be no good reason for hampering the power thus conferred by any construction that would take from him the authority to decide every question that may arise in the proceeding before him which may be necessary in order to fully discharge the duties imposed upon him by the act. Every officer charged with the duty of executing the taxing power, whether it be a surrogate or a town assessor, must necessarily decide, in a judicial capacity, important questions of law, in order to perform the duties of his office.”
The language employed in the decisions from which we have quoted leaves no room for doubt that it is the judgment of the court of last resort that the power conferred on the surrogate by the statute is a taxing power, and that his authority to initiate the proceedings is, like that of the town assessor, exclusive. The supreme court has- no jurisdiction to make an' assessment which the town assessor is required to make, in the first instance, nor has it, in the absence of statutory authority, the right to usurp the functions of the surrogate as a taxing officer under the taxable transfer act. The question of liability to taxation is a fact to be determined by the assessors, and which gives them jurisdiction to'assess It is a conditional step in the proceeding for assessment. And the court cannot, in advance of action by the assessors, take that question away from them. Their action may be reviewed by the courts, and, if it be found that they assumed jurisdiction when they had it not, the wrong will be righted. Authority to pass
The respondent calls attention to the fact that the supreme court has exercised jurisdictiqn in Mc Vean v. Sheldon, 48 Hun, 163; Catlin v. Trinity College, 49 Hun, 278, 1 N. Y. Supp. 808; Id., 113 N. Y. 133, 20 N. E. 864; and Tallmadge v. Seaman (Sup.) 30 N. Y. Supp. 304. The first two cases were submitted on an agreed state of facts, and the last was a special term decision, and in neither of them was the question of jurisdiction raised.
The suggestion of respondent that because of the number of parties, and the great inconvenience which will result if it should be held that the surrogate must, in the first instance, exercise his prerogative as a taxing officer, should no more persuade a strained construction in this case than in Hogan’s Case, supra. Indeed, the. argument of convenience has less merit in the case under consideration, for the complaifit does not present a single question that could not have been passed upon in the surrogate’s court. The interlocutory judgment should be reversed, with costs of this appeal, and the demurrer sustained, with costs. All concur.