Property of Nonresident. § 228 will of the deceased. If the power of appointment has not in fact, been exercised, or if in fact, no property has been transferred by it, the surrogate is without jurisdiction to assess a tax by reason of any succession, and he may modify his order which has held that a transfer or succession did take place which did not in fact take place. (Matter of Backhouse, 110 App. Div. 737; affd., 185 N. Y. 544.) Therefore the motions of the Comptroller to dismiss the proceeding for lack of jurisdiction are denied. Matter of Warren, 62 Misc. Rep. 444. Surrogate Heaton, Rensselaer county. 435. Where Property of Nonresident Is in Two or More Counties. When a nonresident dies leaving personal property in one county of this State, the surrogate of that county has exclusive jurisdiction to assess a transfer tax thereon; but where personal property is within two or more counties, the surrogate of those counties have concurrent jurisdiction. When a nonresident dies owning stock of several domestic corporations whose principal places of business are in different counties such stock is, within the meaning of subdivision 3 of section 2476 of the Code of Civil Procedure, property within that county where the corporate property is, or where the corporation has its principal place of business, and if a petition for letters testamentary or for letters of administration has not been filed in any other county, the surrogate of such county has jurisdiction to assess a transfer tax on the stock situated in all the counties by virtue of section 229 of the Tax Law and section 2477 of the Code of Civil Procedure. Matter of Arnold, 114 App. Div. 244, 99 N. Y. S. 740. § 228 When Ancillary Letters Can Issue. 436. When without Jurisdiction - Incident. The surrogate is without jurisdiction to levy a tax upon personal property of a nonresident who dies possessed of only personal property in this State prior to May 1, 1892, although such property was not removed from this State until after that date. Matter of Pettit, 65 App. Div. 30-33, 72 N. Y. S. 469. 437. Jurisdiction When Power of Appointment Is Exercised. The surrogate of the county in which the donee of the power of appointment resided at the time of her death, and in which her will was admitted to probate, has jurisdiction under section 229 (now section 228) of the Tax Law to determine whether the transfer is taxable. Matter of Seaver, 63 App. Div. 283, 71 N. Y. S. 544. This decision was rendered under chapter 284, Laws 1897, amending section 220 by taxing transfers upon the execution of a power, as if the interest passed from the donee upon the exercise of the power by will. 438. Ancillary Letters Can Issue Only to or with the Consent of the Foreign Executor. The Surrogate's Court has no power to issue letters of administration with the will annexed upon the estate of a decedent whose will has been admitted to probate in the foreign jurisdiction of another State. Jurisdiction with respect to such wills is limited to the issue of ancillary letters testamentary, or ancillary letters of administration with the will annexed, and under section 2697 of the Code of Civil Procedure it cannot issue even ancillary letters to a persons other than the foreign executor or administrator, unless such person files with his petition the consent of the foreign executor or administrator. Baldwin v. Rice, 100 App. Div. 241. Stock of Domestic Corporations. § 228 439. Ancillary Letters Unnecessary in Transfer Tax Proceedings. Where neither letters testamentary nor ancillary letters were applied for, that fact is unnecessary to confer jurisdiction upon the surrogate to impose a tax upon the property of a nonresident decedent. Matter of Fitch, 160 N. Y. 87-91. 440. Jurisdiction Over Stock in Domestic Corporations. It seems that the Transfer Tax Act and the section of the Code of Civil Procedure providing for the granting of letters upon a decedent's estate should be read together, as if constituting one enactment, and that which is held to be property, within the meaning of the portion of the statute which imposes a tax upon its transfer, is also property for the purpose of conferring upon the Surrogate's Court jurisdiction to impose the tax. Therefore the surrogate of the county in which a domestic corporation operates, has jurisdiction to assess the transfer tax upon stock of such domestic corporations owned by a nonresident at the time of his death. Matter of Fitch, 160 N. Y. 87, affg. same case, 39 App. Div. 609, 57 N. Y. S. 786, and 26 Misc. Rep. 353, 57 N. Y. S. 212. 441. What Irregularity Don't Affect. The surrogate who first issues ancillary letters upon the estate of a nonresident, who leaves property in more than one county in this State, acquires exclusive jurisdiction to appoint an appraiser for the purpose of transfer tax proceedings, although the proceedings before that surrogate were irregular, in that the ancillary letters were acquired without citing the county treasurer as required by law. Matter of Hathaway, 27 Misc. Rep. 474, 59 N. Y. S. 166. § 228 Former Acts Relating to Jurisdiction. 442. Distribution Does Not Affect the Jurisdiction. Where foreign executors have made distribution of the property within this State and been discharged by the court of the decedent's domicile, the surrogate of the county in this State where such personal property was situated at the time of the owner's death has jurisdiction to fix the tax. Matter of Hubbard, 21 Misc. Rep. 566, 48 N. Y. S. 869; Matter of Fitch, 26 Misc. Rep. 353, 57 N. Y. S. 212; Matter of Crerar, 31 Misc. Rep. 481, 65 N. Y. S. 573. 443. Corresponding Sections of Former Acts Relating to the Jurisdiction of the Surrogate. Section 15 of the Act of 1885 stated that the Surrogate's Court of the county in which the real property of a decedent who was not a resident was situate, or in the county of which the decedent was a resident at the time of his death, should have jurisdiction to hear all questions in relation to the tax arising under that act. By the amendment to section 1 of the Act of 1885 by chapter 713, Laws 1887, taxing the property of nonresidents in this State, the courts held that section 15 limited the jurisdiction of the Surrogate's Court, in the case of nonresident decedents, to the assessment of tax in such cases only when the nonresident owned real estate in this State. Matter of Embury, 19 App. Div. 214; affd., 154 N. Y. 746. Section 10 of the Act of 1892, revised from section 15 of the Act of 1885, became section 229 of the Act of 1896, which was amended by chapter 173, Laws 1901, in effect April 1st of that year, by providing that in the petition for ancillary letters the State Comptroller must be cited in counties where the office of the appraiser is salaried, and in the other counties the county treasurer. Section 229 of Section 229, Tax Law. § 229 the Act of 1896, as amended, became section 228 of chapter 368 of the Laws of 1905, and was amended so that, upon the application for ancillary letters in any county, the citation shall be directed to the State Comptroller For reference to jurisdiction of surrogate in respect to estates of nonresident decedents, see Chapter VII. 444. Appointment of Appraisers, Stenographers and Clerks. [§ 229, Tax Law.] The state comptroller shall appoint and may at pleasure remove not to exceed six persons in the county of New York;1 three persons in the county of Kings, and one person in the counties of Albany, Dutchess, Erie, Monroe, Nassau, Oneida, Onondaga, Orange, Queens, Rensselaer, Richmond, Suffolk and Westchester, to act as appraisers therein. The appraisers so appointed shall receive an annual salary to be fixed by the state comptroller, together with their actual and necessary traveling expenses and witness fees, as hereinafter provided, payable monthly by the state comptroller out of any funds in his hands or custody on account of transfer tax. The salaries of each of the appraisers so appointed shall not exceed the following amounts: In New York county, four thousand dollars; in Kings county, four thousand dollars; in Erie county, [Former section 230 related in part to the appointment of appraisers, stenographers, etc.] 1-4. Chap. 658, Laws 1900-in effect April 25 of that year. — Authorized the State Comptroller to appoint and at pleasure remove five persons in the county of New York; two persons in the county of Kings, and one person in the county of Erie, to act as appraisers therein. By Chap. 368, Laws 1905-in effect June 1 of that year. The num ber of appraisers in New York county was changed from five to "six." By Chap. 310, Laws 1908-in effect May 18 of that year. - The Comptroller was authorized to appoint an appraiser in Nassau county. By Chap. 283, Laws 1909-in effect May 4 of that year. The num ber of appraisers in Kings county was increased from two to three. 5. Chap. 173, Laws 1901-in effect April 1 of that year. The State Comptroller was authorized to appoint appraisers in the eleven other counties hereinbefore named. The appraisers in the other counties were not to be appointed, however, until January 1, 1902, and until such time said counties were deemed counties in which the office of appraiser was not salaried. 8. By Chap. 567, Laws 1906-in effect May 23 of that year. |