§ 230

Failure to Tax Certain Interests.

actually transferred under the intestate laws of the State of California. The Superior Court of Los Angeles being a court of competent jurisdiction its decree was entitled to full faith and credit in this court (Tilt v. Kelsey, 207 U. S. 43). Therefore, as the decedent's property in California was not transferred to his next of kin by virtue of the intestate laws of this State the courts of this State have no jurisdiction to impose a tax upon the transfer of such property." Matter of Cummings, N. Y. Law Journal, June 8, 1909, Surrogate Cohalan.

482. Effect of Failure to Tax Known Property.

Where a surrogate, knowing of the existence of personalty, does not tax it, there is a determination that it is not taxable, which becomes final where there was no appeal taken from the order of taxation. Matter of Lansing, 31 Misc. Rep. 148-154, 64 N. Y. S. 1125.

483. When Omission to Tax Life Estate Amounts to an Express Reservation Thereof.

Where an appraiser omitted in his report to tax the life estate of an infant in a trust fund upon the ground that the value thereof could not then be ascertained, and that the ultimate legatees were indefinite and uncertain, and an order was subsequently entered in accordance with the report, held, that such omission is not an adjudication that the interests of the infant are not taxable at all, but amounts to an express reservation of the matter of taxation of such life estate, and that it was proper to tax such interests when they could be ascertained. Matter of Irwin, 36 Misc. Rep. 277, 73 N. Y. S. 415.

484. Where Failure to Tax Remainders Does Not Bar Subsequent Proceedings Therefor.

A decedent died August 12, 1894, giving his residuary estate to his executors in trust to pay the income to his wife for life, and after the death of the wife the executors were directed to pay a large number of collateral relatives certain specified sums; the will

further providing that in the event of the residuary estate being insufficient at the time of the wife's death to pay the legacies in full that they should be paid pro rata, and that if any of the legatees did not survive the decedent's wife their share should be paid to their next of kin respectively. In transfer tax proceedings instituted in 1895 the appraiser found that the value of the widow's life estate was presently taxable, but reported that it is not at present ascertainable to whom the remainder will finally pass, and the order was entered taxing only the life estate. The widow died September 16, 1900, and on November 11, 1905, an order was entered assessing tax on the remainder interests. The executors appealed on the ground that the legacies to the remaindermen vested at the decedent's death in 1894 and should have been appraised and taxed; that the appraiser having failed to determine or the order assess a tax on such remainders at that time, the court was without jurisdiction to entertain a proceeding upon the death of the life tenant as more than two years had elapsed since the entry of the former order. The surrogate affirmed the taxing order on the Matter of Irwin, 36 Misc. Rep. 277. Matter of Mowry, N. Y. Law Journal, January 19, 1906; affd., 114 App. Div. 904.

485. Burden of Proof.

The State has the burden of proving the facts under which the transfer tax may be imposed. Matter of Enston, 113 N. Y. 174-178; Matter of Vassar, 127 N. Y. 1-12; Matter of Thorne, 44 App. Div. 8, 60 N. Y. S. 419; Matter of Miller, 77 App. Div. 473–479, 78 N. Y. S. 930.

Where the only proof offered before the appraiser

8 230

When Date of Death to Be Determined.

is that of a witness who states that five years before a decedent's death he showed him a box stating that it contained securities to the amount of $700,000, on such proof there is no presumption that the testator continued in possession of the securities until his death, so as to cast the burden upon the executor to show what become of them, but they should be required to show that it did not come into their hands, and that they had no knowledge thereof. Matter of Kennedy, 113 App. Div. 4.

486. Appraiser Must Take Proof of Adoption.

Naming a legatee as "my niece and adopted daughter" by a decedent in his will is not conclusive, and the appraiser must take proof of the adoption. Matter of Fisch, 34 Misc. Rep. 146, 69 N. Y. S. 493.

487. May Report as to Date of Decedent's Death.

In the Matter of Beckwith (not reported), it appears from the report of the appraiser filed in the State Comptroller's Office, May 23, 1904, that Arthur Beckwith, a resident of New York county, on April 24, 1894, escaped from a sanitarium at Flushing, New York, where he was temporarily confined, and was never heard of or seen after that time by any one.

That in 1902 application was made to the Surrogate's Court of New York county for letters of administration upon his estate, and upon the petition filed a referee was appointed to take proof of the facts attending his disappearance and report whether he be dead. Upon the report of the referee it was adjudged that the said Arthur Beckwith was dead, and letters of administration were issued on the 15th day of January, 1902. Thereafter transfer tax proceed

Id.; Report of Appraiser Thereon.

§ 230

ings were commenced, and then the question arose as to the date of his death, the Comptroller first contending that his death must be fixed as on or about the date of entry of the order granting letters, viz., January 15, 1902, while certain creditors of decedent's deceased brother, who died November 18, 1895, were anxious to show that the said Arthur Beckwith died prior to the death of his insolvent brother, in which event the insolvent brother's estate would be entitled to the one-half part of the said Arthur Beckwith's whole estate, which amounted to nearly $600,000. The surrogate amended his former order directing one of the appraisers of New York county to appraise the decedent's property, by adding thereto a direction "to take proof of the facts and circumstances attending the death of said Arthur Beckwith, and to report the testimony taken by said appraiser, and his conclusion, as to the date of death."

Several physicians testified that the physical condition of the said Arthur Beckwith, at the time of his disappearance, was such that it would have been impossible for him to have lived without medical treatment for any length of time after he escaped, but the appraisers fixed the date of his death as seven years from April 24, 1894, the day he escaped from the sanitarium, and the surrogate confirmed the report and assessed a tax on the one-half of his estate passing to the children of the deceased insolvent brother at 5 per cent. The administrator appealed from this finding of the appraiser and the order assessing the tax, but the surrogate, by order entered July 21, 1904, overruled the appeal and confirmed the report of the appraiser, and affirmed the order assessing the tax thereon in all respects.

488. Evidence as to Declarations of Testator.

Testimony of the executor as to the declaration of the testator, as to the value of the notes, is not competent; his own conclusions, that they were valueless, if not objected to, may be properly considered. Morgan v. Warner, 45 App. Div. 424, 60 N. Y. S. 963; affd., 162 N. Y. 612.

489. Surrogate May Return Report to Appraiser.

Before acting upon the appraiser's report the surrogate may return it to the appraiser for additional proof. Matter of Kelly, 29 Misc. Rep. 169, 60 N. Y. S. 1005.

490. Should Vacate Order When Report Defective.

Where the surrogate confirms the appraiser's report without noticing that it is defective, he has authority to vacate his order of confirmation and send the report back to the appraiser for correction. Matter of Earle, 74 App. Div. 458, 77 N. Y. S. 503.

491. When Second Appraisal Cannot Be Had.

Where an appraiser reported that the value of the life interests of certain devisees could not at that time be ascertained, and that the remaindermen were indefinite and uncertain, and the tax could not then be determined, which report was confirmed by the surrogate, there is no authority for appointing another appraiser several years thereafter to appraise the amounts paid the life tenants in the meantime, as there had been no change in the estate or condition of affairs, except that the annual income had been paid to the life tenants under the provisions of the will. Matter of Lawrence, 96 App. Div. 29, 88 N. Y. S. 1028.