§ 230 Hearings before Appraiser. is an independent office, separate and distinct from any other. The appraiser has power to issue subpoenas and compel the attendance of witnesses. His powers and duties are of a quasi-judicial character, and call for the exercise of sound judgment, discretion and a knowledge of legal principles. They partake of the nature of the acts of commissioners appointed by the court in condemnation proceedings and of referees to hear, try, and determine the issues in actions, or to take proof in actions and report the same to the court with their opinion thereon, all of which demand upon the part of the incumbent an understanding of statutory provisions, and ability to pass upon complicated questions of law. People ex rel. McKnight v. Glynn, 56 Misc. Rep. 35, 106 N. Y. S. 956. 466. Hearings before Appraiser. Upon the hearings before the appraiser the facts are generally presented by the executor or administrator in the form of affidavits, showing the character of the property left by the decedent, and the items of each article of real or personal property and their value, respectively, at the time of the decedent's death, the amount and nature of each debt paid or allowed against the estate, the testamentary expenses, commissions, etc., which will be claimed as proper deductions, and the names and relationship of the legatees or distributees, and such other information as may be necessary in each particular case to fully and fairly place before the appraiser all the facts necessary for him to ascertain the clear market value of the decedent's estate, and the net amount transferred, and to whom. Where Heirs or Next of Kin Are Unknown. § 230 467. Amount of Estate Must Be Proved to Warrant Assessment. While it may not be necessary for either the appraiser or surrogate to identify the property in order to make an appraisal and assessment thereon, yet an estate should not be appraised and a transfer tax imposed thereon except upon clear proof of the amount of the property passing under the will or intestate laws, or by transfers made before death and in contemplation thereof, or intended to take effect in possession or enjoyment at or after the death of grantor. Where the only evidence of the amount of an estate is the testimony of a witness hostile to the testator, who says that five years before the testator's death he showed the witness a box which he said contained securities worth $700,000, the evidence furnishes no basis for an assessment at that amount. Matter of Kennedy, 113 App. Div. 4. 468. How Tax Is to Be Collected Is Immaterial. Property of a decedent should be appraised and the transfer thereof, if taxable, should be taxed, although it is not apparent how the tax can be collected. Matter of Dingman, 66 App. Div. 228, 72 N. Y. S. 694. 469. Taxation Where Decedent Leaves No Known Heir or Next of Kin. It occasionally happens that the appraiser is unable to discover the heirs-at-law or next of kin of a decedent, and the practice is to enter an order upon the report suspending the taxation thereof until such time as the distributees are ascertained. This was true in § 230 Decedent Presumed to Leave Next of Kin. the estate of Otto Lind, N. Y. Law Journal, July 21, 1908, and the Comptroller, believing it would be the better practice to have the tax determined under section 230 at the highest rate upon which there was any possibility of its passing, and paid by the public administrator for the purpose of stopping the running of penalty or interest, appealed from the order suspending the taxation of this estate. Surrogate Thomas held: "In the absence of evidence that the decedent left next of kin there was nothing before the appraiser from which he could determine the things necessary to the making of an order fixing tax, to wit, the taxability of the estate, the name and relationship of the transferree and the amount of the tax. It would doubtless be convenient in cases like the present, if as desired by the State Comptroller, an order might be entered assessing a tax of five per cent. against the administrator of the estate, who in this case is the public administrator, but I find no authority in the statute for the adoption of such a course. The Appellate Division reversed the surrogate, holding that Upon the death of the decedent his personal property vested in the administrator, and his next of kin were entitled to the property upon proving their relationship to the deceased. No such person has appeared and no such person has been found to be in existence. There has been no transfer dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged.' Matter of Vanderbilt (172 N. Y. 69) had relation to a trust estate in which the ultimate beneficiaries were uncertain, and what is said in that case relates to such an estate. The only uncertainty as to the ownership of this property depends upon the fact as to whether the deceased left next of kin. The presumption is that the deceased left next of kin, but there is no presumption that he left a widow or descendants. It is presumed therefore that the property vested in the next of kin of the deceased, and is therefore taxable under section 220 of the Tax Law, and as it does not appear that it is exempt under section 221 of the Tax Law, the tax imposed by subdivision 6 (now subd. 7) of section 220 applies, and it is taxable at the rate of five per cent." Matter of Lind, 131 App. Div. -. What Report Should Contain. 470. Report of Appraiser. § 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. (§ 230, supra.) 471. What Report Should Show. The report should show that the property was appraised at its fair market value, and the appraiser should report all property as to which he is in doubt as subject to tax. Matter of Astor, 17 N. Y. St. R. 787; Matter of Hendricks, 18 N. Y. St. R. 989-990, 3 N. Y. S. 281. 472. What Report Should Contain. The report should contain all the affidavits submitted and the testimony of all witnesses produced before the appraiser, a schedule containing a complete list of all the personal property and the value of each item thereof and another list showing the real estate with a brief description and the value thereof less any mortgage incumbrances or other liens thereon; the amount of debts and testamentary expenses paid and the estimated commissions, and additional expenses to be incurred in the settlement of the estate, the names and relationship of all legatees or distributees, and the interest transferred to each respectively. Corporations claiming exemption should produce before the appraiser proofs which clearly entitle them thereto; a copy of the decedent's will should be attached to the report and a summary statement, showing the aggregate net amount transferred, and the particular share thereof passing to each person or corporation. The date of decedent's death and the names and addresses of the executors or administrators should be given. § 230 Competency of Witness. Where the mutually acknowledged relationship of parent and child is claimed to have existed between the decedent and a legatee, proof of such relationship should be produced by the executor or legatee by the affidavit or testimony of at least two disinterested persons who have lived in the neighborhood of the decedent and can testify as to such relationship, from personal conversation with the decedent and observations made during the period which would show that such relationship commenced at or before the child's fifteenth birthday and was continuous for at least ten years thereafter, and, since June 1, 1905, that the parents of such legatee were dead at the time the relationship commenced, except in the case of a step-child. If the value of any assets or part of the decedent's estate cannot be presently determined, or where the appraiser is in doubt as to the immediate taxability of any interest transferred by the decedent's will, the circumstances in connection therewith should be fully set forth in the report of the appraiser. The value of every future or limited estate, income, interest, annuity, or remainder, as determined by the superintendent of insurance, should be attached to each copy of the appraisers' report before such report is filed. 473. Competency of Witness. A witness is not made incompetent by section 829 of the Code to testify respecting "confidential communications and acknowledged relations growing out of an agreement between him and the decedent," for the purpose of showing the acknowledged relation of parent and child between the decedent and the witness. Matter of Brundage, 31 App. Div. 348. So a |