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out a petition, and of his own motion, whenever in the sound exercise of his discretion he decrees it proper to do so "the exercise of his discretion evidently referring to action upon his own motion, but his duty to act in either case is imperative. "Of course before acting on his own motion, he must determine whether the facts within his official knowledge are such as to require action, and before acting upon the application of an interested party he must determine whether a proper application has been made, but his duty to act is just as imperative in either case as is the duty of local assessors to obey the command of the statute respecting the performance of their duty, and there is no more reason for saying that he has a discretion in the matter than there is for saying that any officer charged with the performance of a public duty has a discretion whether he will discharge such duty." Matter of Kelsey v. Church, 112 App. Div. 408.

452. Character of the Law.

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 these agencies should be, and under what rules and regulations they should proceed to enforce collection of the tax, the Legislature alone had power to determine. Weston v. Goodrich, 86 Hun, 194–199, 33 N. Y. S. 382.

453. Construction of the Act.

The Tax Law should be construed strictly in favor of the citizen and against the State. Matter of Enston,

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When Appraiser to Be Appointed.

113 N. Y. 174; Matter of Vassar, 127 N. Y. 12; Matter of Stewart, 131 N. Y. 274, 282; Matter of Swift, 137 N. Y. 77, 86; Matter of Fayerweather, 143 N. Y. 114; Matter of Harbeck, 161 N. Y. 211, 217.

454. When Appraiser to Be Appointed.

Under the Act of 1885 it was held that appraisers should only be appointed in taxable estates. Matter of James, 5 Dem. 30. But since the Act of 1892 the practice has been to institute proceedings in all estates where apparently there is a tax due, and at as early a date as possible after letters are issued.

The Court of Appeals, in the Matter of Westurn, 152 N. Y. 100, said: "We think the jurisdiction of the surrogate to appoint an appraiser is one that may be exercised with or without a petition, and of his own motion, whenever in the sound exercise of his discretion he deems it proper to do so, in a case in which he is officially cognizant of the fact that property had been transferred in the manner mentioned in section 220 of the act."

455. Who Can Make the Application.

The application for an order appointing an appraiser in transfer tax proceedings is generally made by the executor or administrator, but the statute provides that the surrogate may appoint an appraiser either upon his own motion, or upon the petition of any interested party, which includes the State Comptroller. Matter of O'Donohue, 44 App. Div. 186, 59 N. Y. S. 1087, 60 N. Y. S. 690.

456. Application of State Comptroller on Information and Belief as to Taxable Property.

A petition by the State Comptroller, stating on information and belief that a will has been duly ad

Comptroller's Right to an Appraisal.

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mitted to probate, and that the property of the decedent passing by will, or some portion thereof or interest therein, is subject to the payment of a transfer tax, is sufficient to empower the surrogate to appoint an appraiser without proof showing what specific property of the decedent was taxable. Matter of O'Donohue, 44 App. Div. 186, 60 N. Y. S. 690, affg. 28 Misc. Rep. 607, 59 N. Y. S. 1087. The same rule would doubtless apply where the decedent died intestate, and the application was made by the State Comptroller upon information and belief as to the facts stated.

457. State Comptroller's Right to an Appraisal.

The State Comptroller is not precluded from taking proceedings in 1902 to assess the transfer tax upon an estate where the decedent died, and whose will was proved in 1895, and the counsel for the estate was informed by the surrogate, upon the basis of the executor's affidavit, that the estate was too small to be taxable, it appearing that no decree was then or ever entered taxing or exempting the estate, and that consequently no notice of an appraisal was ever given to the persons legally entitled thereto. Matter of Schmidt, 39 Misc. Rep. 77, 78 N. Y. S. 879.

458. Where Property Is in Several Counties.

Where property of a decedent is situated in several counties, the appraiser appointed by the surrogate first acquiring jurisdiction may appraise all. Matter of Keenan, 22 N. Y. St. Rep. 79, 5 N. Y. S. 200. (Decision Act 1887.)

459. Appraisal of Interest-When Postponed.

If the interest subject to tax cannot be appraised immediately after the transfer, it is to be appraised

398

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Notice of Appraisal.

at its fair and clear market value at the date of its transfer, whenever such value can be ascertained. Matter of Sloane, 154 N. Y. 109-114. (Decision 1892.) 460. What Statute Controls Proceedings.

A proceedings for the ascertainment and determination of a transfer tax is controlled by the statute in force at the time the proceeding is instituted, but the tax itself and the rights of the parties are controlled by the statute in force at the time of the transfer. Matter of Sloane, 154 N. Y. 109; Matter of Davis, 149 N. Y. 537; Matter of Prime, 136 N. Y. 347.

461. Notice of Appraisal.

Before the liability of the taxpayer becomes fixed, he must have notice of the proceedings against him and a hearing, or an opportunity to be heard, in reference to the value of the property and the amount of the tax which is to be imposed. Matter of McPherson, 104 N. Y. 306-321.

An appraiser should mail notices of the time and place when he will appraise the property to all persons known to have a claim or interest in the property to be appraised, including the State Comptroller, and to such persons as the surrogate may by order direct. § 230 (supra).

An assessment of a transfer tax, made without notice to the sole heir-at-law, is void as to her. Matter of Winters, 21 Misc. Rep. 552, 48 N. Y. S. 1097.

462. Notice Held Insufficient under Act of 1887.

A report showing that only the persons whose names appear in the order appointing the appraiser were served with the notice is insufficient. It should show that the persons served were all the persons known

Duties of Are Quasi-judicial.

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to the appraiser to have or claim any interest in the property. Matter of Astor, 6 Dem. 413, 2 N. Y. S. 630.

463. People-Interested Party under Act of 1885.

An appraisal is not regular where the record does not show that the proper officers representing the people had due notice. Matter of Bolton, 35 Misc. Rep. 688, 72 N. Y. S. 430.

Under the Act of 1885 the people were held to be an interested party although not cited, and when the district attorney appears in the proceedings it will be assumed that he had authority to do so. Matter of Arnett, 49 Hun, 599, 2 N. Y. S. 248.

464. Surrogate May Be Compelled by Mandamus to Order Appraisal of Estates.

Section 230 requires the surrogate, upon his own motion or upon the application of an interested party, including the State Comptroller, to order an appraisal of estates subject to a transfer tax, and this provision is mandatory and not discretionary with the surrogate. Compliance by the surrogate therewith may be compelled by mandamus on the relation of the State Comptroller, as the duty of appraisal is ministerial, and such writ may issue on a petition verified by the attorney for the State Comptroller setting forth facts showing the jurisdiction of the surrogate, although the allegations are made upon information and belief. Matter of Kelsey v. Church, 112 App. Div. 408.

465. The Duties of an Appraiser Are of a Quasi-judicial Character.

The office of transfer tax appraiser is not a position in the Comptroller's nor in the surrogate's office, but

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