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§ 227

Former Statutes Relative to.

amended former section 228 by making the failure to serve the notice and to allow such examination, or to retain a sufficient portion to pay such tax and penalty, subject the safe-deposit company and the others named to the payment of three times the amount of tax and penalty upon such securities, etc., making the delivery or transfer.

By chapter 368, Laws 1905, in effect June 1st of that year, former section 228, which is now section 227 of the Act of 1905, was further amended by providing that no safe-deposit company, and others named, shall deliver to the executors, etc., of the estate any securities, stocks, etc., "belonging to or standing in the name of a decedent who was a resident or nonresident, or belonging to, or standing in the joint names of such a decedent and one or more persons," or " deliver the same to the survivors when held in the joint names of a decedent and one or more persons," without giving the Comptroller notice of the time and place of such intended delivery. Failure to give such notice or allow the examination of the securities, etc., or to retain a sufficient amount to pay the tax and interest renders the safe-deposit company and the others named liable to the payment of the tax and interest due upon said securities, etc., " and in addition thereto a penalty of one thousand dollars." And the State Comptroller is authorized to bring an action to collect such tax and penalty in any court of competent jurisdiction.

By chapter 310, Laws of 1908, in effect May 18th of that year, the penalty for failure to comply with the provisions of this section was increased to not less than five or more than twenty-five thousand dollars, and this provision was retained in section 227 of chapter 62 of the Laws of 1909.

of chap

CHAPTER XII.

JURISDICTION OF THE SURROGATE, § 228, TAX LAW-
APPOINTMENT OF APPRAISERS, STENOGRAPHERS AND
CLERKS, 229, TAX LAW.

429. Jurisdiction of the surrogate.
430. Original and exclusive juris-
diction.

431. Surrogate is the taxing of
ficer.

432. Determine all questions re-
lating to said act.

433. Jurisdiction of surrogate not
affected by repeal of Act
of 1885.
434. If surrogate acts without
jurisdiction he can modify
his decree.

435. Where property of nonresi-
dent is in two or more
counties.

436. When without jurisdiction
incident.

437. Jurisdiction when power of
appointment is exercised.

438. Ancillary letters can issue
only to or with the consent
of the foreign executor.

439. Ancillary letters unnecessary
in transfer tax proceed-
ings.

440. Jurisdiction over stock in domestic corporations.

441. What irregularity don't effect.

442. Distribution does not affect the jurisdiction.

443. Corresponding section of former acts relating to the jurisdiction of the surrogate.

444. Appointment of appraisers, stenographers and clerks. 445. A transfer tax appraiser is a public officer.

446. Appraiser appointed under
this section can be re-
moved at the pleasure of
the Comptroller.

447. The general subject.
448. Chapter 658, Laws of 1900, is
constitutional.

449. County treasurers to act as
appraisers in certain coun-
ties Chapter 173, Laws
of 1901, is constitutional.

429. Jurisdiction of the Surrogate.

[§ 228, Tax Law.] The surrogate's court of every county of the state 1 having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent whose property

[Former section 229 related to jurisdiction of the surrogate.]

1. Chap. 483, Laws 1885-in effect June 30 of that year. - Section 15 provided that the Surrogate's Court in which the real property of

§ 228

Jurisdiction of the Surrogate.

2

is chargeable with any tax under this article, or to appoint a trustee of such estate or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and determine all questions arising under the provisions of this article, and to do any act in relation thereto authorized by law to be done by a surrogate in other matters or proceedings coming within his jurisdiction; and if two or more surrogates' courts shall be entitled to exercise any such jurisdiction, the surrogate first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other surrogate. Every petition for ancillary letters testamentary or ancillary letters of administration made in pursuance of the provisions of article seven, title three, chapter eighteen of the code of civil procedure shall set forth the name of the state comptroller as a person to be cited as therein prescribed, and a true and correct statement of all the decedent's property in this state and the value thereof; and upon the presentation thereof the surrogate shall issue a citation directed to the state comptroller; and upon the return of the citation the surrogate shall determine the amount of the tax which may be or become due under the provisions of this article and his decree awarding the letters may contain any provision for the payment of such tax or the giving of security therefor

3

a nonresident decedent was situate or in the county of which the decedent was a resident at the time of his death should have jurisdiction to determine all questions relating to the tax under said act. Section 16 of said act also referred to the jurisdiction of the surrogate where it shall appear that any tax accruing under said act had not been paid.

2. Chap. 399, Laws 1892-in effect May 1 of that year. Contains provision that the Surrogate's Court having jurisdiction to grant letters testamentary or of administration upon the estate of decedent whose property is chargeable with any transfer tax, or to give ancillary letters thereon, shall have jurisdiction to hear and determine all questions arising under the provisions of this article. This provision became a part of section 229 of the Act of 1896.

3. Chap. 173, Laws 1901-in effect April 1 of that year. — Provided that the State Comptroller must be cited upon the application for ancillary letters in all counties where the office of appraiser is salaried.

Chap. 368, Laws 1905-in effect June 1 of that year. Provides that the State Comptroller shall be cited upon every application for ancillary letters.

Surrogate Is the Taxing Officer.

§ 228

which might be made by such surrogate if the state comptroller were a creditor of the decedent.*

430. Original and Exclusive Jurisdiction.

In construing the provisions of sections 13 and 15 of the Act of 1885 the court said: "When we read all 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 jurisdiction exclusive in its nature." Matter of Wolfe, 137 N. Y. 205–211. The Supreme Court has no jurisdiction

to

in the absence of statutory authority usurp the functions of the surrogate as a taxing officer under the Taxable Transfer Act. Weston v. Goodrich, 86 Hun, 194-200, 33 N. Y. S. 382.

431. Surrogate Is the Taxing Officer.

The surrogate is first made a taxing officer, who, upon the report of his appraiser, enters an order fixing the tax" as of course," from which an appeal lies to the surrogate sitting as a judge, when for the first time the proceedings take on a judicial character. Weston v. Goodrich, 86 Hun, 194–199, 33 N. Y. S. 382.

432. Determine All Questions Relating to Said Act.

The Surrogate's Court in the county in which a decedent was a resident at the time of his death has jurisdiction to hear and determine all questions in relation to taxation under said act (Act of 1885, as amended by

4. Chap. 399, Laws 1892-in effect May 1 of that year. Section 10 of the Act of 1892 contained a provision substantially the same as the foregoing in reference to providing for the payment of tax or giving security therefor.

§ 228

When Surrogate Can Modify Decree.

chap. 713, L. 1887), and also has power to decide every question that may arise in a proceeding under the act which may be necessary to fully discharge the duties imposed. Matter of Ullman, 137 N. Y. 403.

433. Jurisdiction of Surrogate Not Affected by Repeal of Act of 1885.

While chapter 399, Laws of 1892, repealed the Collateral Inheritance Tax Act of 1885 and all amendments thereto without any saving clause in the repealing act itself, it has, nevertheless, been continuously in force by virtue of section 32 of the Statutory Construction Law (Laws of 1892, chap. 677), and the surrogate has jurisdiction to entertain a proceeding in 1898 where the decedent died in 1888, to determine the liability of his estate for transfer tax under the Act of 1885, as amended by chap. 713 of the Laws of 1887. Matter of Jones, 54 Misc. Rep. 202.

434. If Surrogate Acts without Jurisdiction He Can Modify His Decree.

Where application is made within the two-year limitation (section 225) to obtain an order modifying the amended order assessing a transfer tax on the property alleged to have been passed under a power of appointment and objections are made, one of which involves the jurisdiction of the surrogate on the ground that the time to appeal from the amended order has expired, and that the relief sought cannot be obtained except upon appeal, it was held that the validity of this objection depends upon whether the error from which the relief is sought is one of fact or of law, that "the surrogate has no jurisdiction to assess a tax upon property which does not pass by the

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