§ 230 Proceedings by Appraisers. his actual and necessary traveling expenses and the fees paid such witnesses, which fees shall be the same as those now paid to witnesses subpoenaed to attend in courts of record, payment to be made out of funds in the hands of the county treasurer of the proper county on account of the tax imposed under the provisions of this article." The value of every future or limited estate, income, interest or annuity dependent upon any life or lives in being, shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance in ascertaining the value of policies of life insurance and annuities for the determination of liabilities of life insurance companies, except that the rate of interest for making such computation shall be five per centum per annum.8 In estimating the value of any estate or interest in property, to the beneficial enjoyment or possession whereof there are persons or corporations presently entitled thereto, no allowance shall be made on account of any contingent incumbrance thereon, nor on account of any contingency upon the happening of which 7. Chap. 483, Laws 1885-in effect June 30 of that year. Provided that the fees of appraiser should be $3 per day for every day actually and necessarily employed in the appraisement. By Chap. 658, Laws 1900- in effect April 25 of that year. — Section 231, appraisers in every county except New York, Kings, and Erie, were allowed $5 per day and witness fees paid by him. Bills for appraisals were to be paid on the certificate of the surrogate (subject to review and audit by the State Comptroller) by the county treasurer or comptroller out of any funds on account of such tax. By Chap. 173, Laws 1901 in effect April 1 of that year. Former section 231 was amended in respect to the payment of appraiser's fees, etc., so as to conform to the amendment that year providing for salaried appraisers in eleven additional counties, etc. By Chap. 368, Laws 1905,- All bills for witness fees, etc., are by section 230 to be audited by the State Comptroller. By Chap. 62, Laws of 1909, being Chap. 60 of the Consolidated Laws, the provision in reference to appraisers continuing under old designations prior to 1901 was stricken out as obsolete, said provision having been enacted by Chap. 173, Laws 1901, in effect April 1, 1901, amending former section 231. Amended 8. Chap. 713, Laws 1887 in effect June 25 of that year. Bection 13 of the Act of 1885, so as to have the value of future or limited estates determined by the superintendent of insurance, and this provision has been retained in the Transfer Tax Law ever since that time. Section 230, Tax Law. § 230 the estate or property or some part thereof or interest therein might be abridged, defeated or diminished; provided, however, that in the event of such incumbrance taking effect as an actual burden upon the interest of the beneficiary, or in the event of the abridgment, defeat or diminution of said estate or property or interest therein as aforesaid, a return shall be made to the person properly entitled thereto of a proportionate amount of such tax on account of the incumbrance when taking effect, or so much as will reduce the same to the amount which would have been assessed on account of the actual duration or extent of the estate or interest enjoyed. Such return of tax shall be made in the manner provided by section two hundred and twenty-five of this article." Where any property shall, after the passage of this chapter, be transferred subject to any charge, estate or interest, determinable by the death of any person, or at any period ascertainable only by reference to death, the increase accruing to any person or corporation upon the extinction or determination of such charge, estate or interest, shall be deemed a transfer of property taxable under the provisions of this article in the same manner as though the person or corporation beneficially entitled thereto had then acquired such increase from the person from whom the title to their respective estates or interests is derived.10 When property is transferred in trust or otherwise, and the rights, interest or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith by the executors or trustees out of the property transferred; provided, however, that 9. Chap. 284, Laws 1897-in effect April 16 of that year. - First enacted this provision and the same has been re-enacted without material change. 10. Chap. 284, Laws 1897-in effect April 16 of that year. First enacted this provision and the same has been retained in section 230 without material change. § 230 Proceedings by Appraisers. on the happening of any contingency whereby the said property, or any part thereof, is transferred to a person or corporation exempt from taxation under the provisions of this article, or to any person taxable at a rate less than the rate imposed and paid, such person or corporation shall be entitled to a return of so much of the tax imposed and paid as is the difference between the amount paid and the amount which said person or corporation should pay under the provisions of this article," with interest thereon at the rate of three per centum per annum from the time of payment. Such return of overpayment shall be made in the manner provided by section two hundred and twenty-five of this article. 12 Estates in expectancy which are contingent or defeasible and in which proceedings for the determination of the tax have not been taken or where the taxation thereof has been held in abeyance, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estates for purposes of taxation, upon which said estates in expectancy may have been limited. 18 13 Where an estate for life or for years can be divested by the act or omission of the legatee or devisee it shall be taxed as if there were no possibility of such divesting.14 14 11. Chap. 76, Laws 1899-in effect March 14 of that year. — First enacted this provision and the same has been continued without amendment, except that this act provided payment of legal interest on all refund of excess taxes. 12. Chap. 496, Laws 1902 in effect April 30 of that year. - Section 230 provided that the rate of interest on the refunding of excess taxes under this provision should be at the rate of 3 per cent. 13. Chap. 284, Laws 1897-in effect April 16 of that year. — First enacted this provision in reference to "estates in expectancy." By Chap. 76, Laws 1899 in effect March 14 of that year. - Amending section 230, this provision was, doubtless inadvertently omitted. By Chap. 173, Laws 1901 — in effect April 1 of that year. The provision was re-enacted and the words "and in which proceedings for the determination of the tax have not been taken, or, where the taxation thereof has been held in abeyance," were added as they now appear in said section. 14. Chap. 908, Laws 1896-in effect June 15 of that year. enacted this provision. - First Surrogate's Duty to Appoint Appraiser. 8 230 The report of the appraiser shall be made in duplicate, one of which duplicates shall be filed in the office of the surrogate and the other in the office of the state comptroller.15 451. Duty of Surrogate to Appoint an Appraiser Is Imperative -Surrogate's Discretion. Upon application being made to Mr. Justice Maddox, of the Supreme Court, for a writ of mandamus to compel the surrogate of Kings county to accept a petition and appoint an appraiser upon the estate of a nonresident decedent, the justice held that the Supreme Court, at Special Term, will not review the judicial discretion of the surrogate, where, upon application to him, upon a petition in transfer tax proceedings, the surrogate holds that the petition does not state sufficient facts to show that the estate is subject to taxation; if the petitioner feels aggrieved, then he may review, if a review be proper, at the Appellate Division the denial of the surrogate of his application. In this matter it appears that the Comptroller's attorney presented to the surrogate of Kings county a petition on behalf of the Comptroller for the appointment of an appraiser in transfer tax proceedings upon the estate of one Mallon, a nonresident, which petition was duly executed and acknowledged by the Comptroller's attorney, and contained in substance the following allegations: By Chap. 284, Laws 1897-in effect April 16 of that year. .This provision was omitted from section 230. By Chap. 173, Laws 1901 —— in effect April 1 of that year. - This provision was again enacted in section 230. (See Matter of Sloane, 154 N. Y. 109.) 15. Chap. 483, Laws 1885 - in effect June 30 of that year. - Section 13 required the appraiser's report to be filed in the surrogate's office. By Chap. 908, Laws 1896 - in effect June 15 of that year. - Section 232 first required the appraiser's report to be made in duplicate and filed as herein provided. § 230 Surrogate's Discretion in Ordering Appraisal. That on or about the 30th day of November, 1904, William Mallon, then residing without the State of New York, died leaving property in the county of Kings and State of New York subject to taxation under the act in relation to taxable transfers of property to the value and upward of ten thousand dollars ($10,000); that said decedent died intestate; that said property, or some part thereof, is subject to taxation; that no payment of such tax has been made, and that no proceeding has been brought to fix and determine the same by the representatives of said decedent, and that all the persons who are interested in said estate and who are entitled to notice of all proceedings, and their addresses are as follows (naming the persons). The petition was returned to the attorney with the indorsement thereon of the words, "Papers insufficient, J. C. C., S.". the court stating, in substance, that where the allegations of the petition were made upon information and belief, he would not appoint an appraiser upon the petition of the State Comptroller, unless such petition set forth the facts which led the State Comptroller to believe that the decedent died leaving property subject to tax in Kings county as fully as such facts would have to be set forth in the affidavits on an application for an injunction in an action in the Supreme Court. The Comptroller contended that the surrogate's discretion to order an appraisal, only applied in respect to that part of section 230 which authorizes the surrogate " upon his own motion" to order an appraisal; that where application was made "by an interested person, including the State Comptroller," as further provided by said section 230, the surrogate shall, by order, direct the appraisal to be had, thus making it mandatory upon the surrogate where the application was made by an interested person. The court at Special Term further stated that it did not consider the word shall," as mandatory; that it is " clearly within the judicial function to determine whether the 'party' making the application is 'interested.' Again, to determine whether there is sufficient stated in the papers to show that the estate referred to is subject to tax; " that jurisdictional facts must be shown, and it is primarily for the surrogate to determine that question, and that the words "shall by order direct," of necessity depend upon the showing of jurisdictional facts, and consequently that the surrogate must exercise his judicial discretion in determining as to the sufficiency of the papers presented. On appeal from the order of Justice Maddox denying the motion for a writ of mandamus the Appellate Division reversed the justice's order and held that the initial step in proceedings to determine the taxability of an estate was the appointment of an appraiser, and the surrogate was required to make such appointment either on his own motion or upon the application of any interested party including the State Comptroller, that "the jurisdiction of the surrogate to appoint an appraiser is one that may be exercised with or with |