614. Money in lieu of certain ar- 616. When naming a claimant as 619. When debts owing by non- 620. Mortgage debts not to be deducted from personal es tate. 621. Tax- paid in another State. 622. Repairs to real estate not allowed. 623. Tax directed to be paid as an administration expense. 624. When debts cannot be deducted after appraisal. There is no express provision of the statute authorizing the appraiser to make any deductions on account of debts, testamentary expenses, commissions, or general administration expenses, and the earlier cases held that the duty of the appraiser was simply to report the value of the estate without considering or allowing claims against the estate. In the Matter of Swift, 137 N. Y., at page 87, the Court of Appeals says, under Act of 1885: " Manifestly under the law, that which is to be reported by the appraiser for the purpose of the tax is the value of the interest passing to the legatee under the will, without any deductions for any purpose or under any testamentary direction," and in the Matter of Ludlow, 4 Misc. Rep. 594, 25 N. Y. S. 989, the surrogate of Westchester county held that the appraiser exceeded his power under the statute by deducting funeral expenses, expenses of administration, and commissions. The same surrogate reaffirmed this position in the Matter of Millward, 6 Misc. Rep. 425, 27 N. Y. S. 286, the effect of which was to hold that the legatees took the estate cum onere, as the tax is not placed upon what the legatees may get, but upon the value of the estate transferred at the death of the testator. Section 6 of the old law (now section 225), which provides for a refund in certain cases where debts shall be proven against the estate, after the payment of any legacy or share upon which the tax has been paid, was construed by the surrogate as giving the surrogate, but not the appraiser, authority to determine the amount of debts to be deducted. But Surrogate Silkman, in a later decision (Matter of Purdy, 24 Misc. Rep. 301, 53 N. Y. S. 735), refused to follow the procedure of his predecessor, and held that the appraiser himself, in ascertaining the fair market value of the property subject to tax, "must deduct from the personal property the debts of decedent, the expenses of administration, and the commissions of the executor or administrator." It was generally conceded, however, that the statute contemplated that the transfer tax was not to be imposed upon the given estate, but only upon the interest which will ultimately pass to the transferees, and that this view necessarily required a deduction of all debts and expenses of administration § 230 Deductions Generally - Commissions, etc. before the correct amount of the transfer tax could be ascertained, and in New York county and other counties it was generally the custom for the appraiser to take evidence as to the debts, testamentary expenses, and commissions, and to include these items as proper deductions in his report. This question, however, was first passed upon by the Court of Appeals in the Matter of Westurn, 152 N. Y. 93, the court saying: "There can be no doubt, we think, that in ascertaining the value of the estate of the decedent and the value of the taxable interests, debts owing by him are to be deducted. They are charges which qualify the estate and are first to be paid before there can be any distribution of the personal estate to legatees or next of kin. Whether the transfer is by will or by the operation of law, the real interest passing is what remains after payment of debts and other charges. * 571. Deductions Generally -Commissions of Executors and Administrators. The commissions of executors or administrators are deductible, as they are an expense provided by statute and chargeable against the estate and not the beneficiaries. Matter of Westurn, 152 N. Y. 93. Commissions of an executor on specific legacies of stock are not a proper deduction. Matter of Cook, N. Y. Law Journal, May 19, 1909. Surrogate Thomas. 571a. Three Full Commissions - When a Proper Deduction. Section 2730 of the Code of Civil Procedure provides in part as follows: * "If the gross value of the personal property of the decedent amounts to one hundred thousand dollars or more each executor or administrator is entitled to the full compensation on principal and income allowed herein to a sole executor or administrator, unless there are more than three, in which case, the compensation to which three would be When Three Commissions Allowed. § 230 entitled must be apportioned among them according to the services rendered by them, respectively, and a like apportionment shall be made in all cases where there shall be more than one executor or adminis trator." In the appraisal of the estate of Jacob L. Van Pelt (Kings county) the estate at the time of his death was of the value of $98,621.33 and the appraiser allowed only one full commission as a deduction, although it was shown that at the time the executors had received their letters it had been increased by the accrual of interest to more than $100,000. On appeal by the executors the surrogate held, "No doubt, for the purpose of the transfer tax the estate must be valued as of the time of death, but whether each executor shall receive a full commission is to be determined by the value of the estate which they shall have administered. Under familiar methods of estimating deductions it must be found that a triple commission is among the prospective expenses of this administration. The two additional commissions at the estimate made by the appraiser would be $2,299.52. The present order would make the legatees pay a tax upon this sum as an amount which passes to them under the decedent's will, when, as must be seen, it will never reach them. The order appealed from should be modified accordingly." Matter of Van Pelt, N. Y. Law Journal, May 27, 1909. As the increase of an estate is no part of the taxable transfer (Matter of Vassar, 127 N. Y. 1) it would seem that it should not be considered for any purpose upon the appraisal of an estate. Although the executors upon their accounting may be entitled to three full commissions because the interest thereon since decedent's death has increased the estate to over $100,000, yet such right only accrued to the executors owing to conditions which did not exist at the time of the transfer of the decedent's estate, and should therefore be taken care of the same as any other expense which the property of the decedent may be liable for and which arose subsequent to the time of the transfer to the legatee or devisee. § 230 Commissions of Foreign Executors, etc. 572. The Commissions of Temporary Administrators. The commissions of a temporary administrator appointed pending a will contest, and also the commissions of a trustee appointed under a will to pay over the income of a trust to the life beneficiary, are deductible. Matter of Gihon, 169 N. Y. 443. In the Gihon case (supra) the court stated that, while there was a clear distinction between the commissions of an executor, whose appointment is essential for the administration of the estate, and those of a trustee, who only protects the property of the cestui que trust, yet it felt bound to hold the trustees' commissions deductible in view of the provision of section 227 of the Transfer Tax Law, which taxes legacies to trustees in excess of commission, which implies that the commissions themselves should be deducted. 573. Commissions of Foreign Executors. The commissions of foreign executors are deductible upon the appraisal of a nonresident's estate, based upon the relative property within this State, at the rate allowed resident executors, unless proof is made of a different rate allowed by the foreign State. Matter of Kennedy, 20 Misc. Rep. 531, 46 N. Y. S. 906. Matter of Browne, N. Y. Law Journal, May 25, 1907. 574. Executor's Commissions as Trustee. An executor's commission as trustee should be deducted. Matter of Silliman, 79 App. Div. 98, 80 N. Y. S. 336, revg. 38 Misc. Rep. 226, 77 N. Y. S. 267; affd., 175 N. Y., no opinion. 575. Counsel Fees. Reasonable counsel fees paid by the representative of the estate to the attorney employed is a proper de |