§ 232 How Appeal Perfected. a part of decedent's estate was not subject to a transfer tax because situated without the State, and was administered upon and paid to foreign legatees, whether or not the tax when assessed can be collected is a question in no manner presented by such appeal. Matter of Dingman, 66 App. Div. 228, 229, 72 N. Y. S. 694. 665. Id. Where Appraiser Refuses to Appraise an Asset. An error by the appraiser refusing to appraise an asset of the estate is not a ground for setting aside the appraisal, but the remedy is by appeal. Matter of Smith, 14 Misc. Rep. 169, 35 N. Y. S. 701. 666. Id. Only Remedy Where Debts Are Not Urged, or Reserved. Where claims for deductions are not urged before the appraiser, and no general reservation on the subject of claims was made by him, the only remedy under the statute for an omission to give proper credit for debts is by appeal. Matter of Morgan, 36 Misc. Rep. 753, 754, 74 N. Y. S. 478. 667. Id. To Whom and How Perfected. The appeal from the order fixing the tax is to the surrogate, and is perfected upon filing in the office of the surrogate a written notice of appeal within sixty days from the fixing, assessing, and determination of the tax by the surrogate, which said notice of appeal shall state the grounds upon which the appeal is taken. (§ 232.) 668. A Direct Appeal to the Appellate Division Does not lie from the Taxing Order. An appeal direct to the Appellate Division from the decision of a surrogate acting as a taxing officer or an Cannot Appeal Direct to Appellate Division. § 232 assessor, under sections 231 and 232 of the Transfer Tax Law, will be dismissed. The proper practice is to appeal to him to review his decision made as a taxing officer, and then from his judicial determination an appeal can be taken to the Appellate Division. The practice of first appealing to the surrogate from his order entered as of course (section 231) was considered by many as anomalous and unnecessary, and to test this question the counsel for the State Comptroller, in the Matter of Costello, 189 N. Y. 289, served two notices of appeal from the order of the surrogate acting as appraiser, wherein he determined that the estate was not subject to the transfer tax, one directly to the Appellate Division, and the other to the surrogate, acting judicially, as provided by section 232 of the Transfer Tax Law. The Court of Appeals says: "When we keep in mind the fact that the surrogate is a mere taxing officer or assessor, when acting under section 231, no incongruity is presented although it is somewhat unusual that a judicial officer should sit in review of his own decision as an assessor. It is, however, to be said that on an appeal to the surrogate, acting judicially, a complete record is submitted and both sides are heard. We are of opinion that the Appellate Division properly dismissed the Comptroller's appeal from the order of the surrogate made when acting as a taxing officer." 669. Id. Only Remedy to Correct Legal Errors. It seems that the only remedy for the correction of purely legal errors involved in the surrogate's determination is by the appeal prescribed in section 13 (now § 232) of the Transfer Tax Law. Morgan v. Cowie, 49 App. Div. 612, 63 N. Y. S. 608. Act 1892.) (Decision, § 232 Only Remedy to Correct Legal Errors. Imposing a tax upon a bequest necessitates a determination that the legatee is not included in the exemptions mentioned in the Transfer Tax Law. If that determination was erroneous, the remedy of the executor was by appeal from the order in the manner presented by section 232 of the Tax Law (Matter of Cowie, 49 App. Div. 612; Matter of Barnum, 129 App. Div. 418; Matter of Lowry, 89 App. Div. 226). Accordingly, where a decedent died in 1907 and bequeathed the sum of $500 to the Rev. John J. Dunn, "requesting him in his discretion to use and donate the same to the priests engaged in missionary work among the Indians in the West," and the appraiser reported the bequest taxable and it was included in the order fixing the tax upon the estate, the time to appeal from such taxing order having expired, the surrogate will thereafter deny the motion of the executors for an order to show cause why the taxing order should not be vacated and the report remitted to the appraisers for correction. "While the court has power to modify its orders because of newly discovered evidence, errors of fact, or any cause extrinsic of the record (Matter of Henderson, 157 N. Y. 423), the papers in this matter do not contain any allegations that facts have arisen since the entry of the order which would make the bequest exempt, or that the court lacked jurisdiction to assess a tax upon the transfer of the property of the legatee." Matter of Murphy, N. Y. Law Journal, June 2, 1909. Surrogate Cohalan. 670. Id. Where Comptroller Was Not a Party. It was held in the Matter of Dingman, 66 App. Div. 228-231, 72 N. Y. S. 694, that, where the State Comptroller was not a party to the proceedings in which the order was made, he had three months from the time of the entry thereof in which to take an appeal, as Ground of Appeal Must Be Stated. § 232 provided by section 2572 of the Code of Civil Procedure. 671. The Order Appealed from. Where the notice of appeal states that it is from the order of January 24, 1903, as resettled by order of March 24, 1903, the resettled order is the one appealed from. Matter of Post, 85 App. Div. 611, 82 N. Y. S. 1079. 672. Surrogate Can Construe Will on Appeal to Him. The construction of the will of the deceased is necessarily involved in transfer tax proceedings upon the decedent's estate. Matter of Peters, 69 App. Div. 465, 466, 74 N. Y. S. 1028. But a failure to appeal from the surrogate's decree in the tax proceedings does not conclude the parties interested as to the same questions in other proceedings, as the adjudication of the surrogate in such case is limited to the subject of taxation. Matter of Ullman, 137 N. Y. 403, 407, citing Matter of Wolfe, 137 N. Y. 205. 673. Necessity of Stating the Grounds of the Appeal. Where the statute requires the grounds of the appeal to be stated, none except those specified can be considered. Matter of Davis, 149 N. Y. 539-548. The review of the surrogate on an appeal to him is limited to the items specified in the notice of appeal. Matter of Wormser, 51 App. Div. 441, 64 N. Y. S. 897. 674. Object of Stating the Grounds of Appeal. The purpose of requiring the notice of appeal to the surrogate to state the grounds the appeal is made upon was to limit the questions to be reviewed by him to those only stated in the notice, and neither the Su § 232 Where Appeal and Motion Are Both Pending. preme Court nor the Court of Appeals can review any question except that reviewed by the surrogate. Matter of Manning, 169 N. Y. 449–452. 675. Where Notice Fails to State Grounds - Appeal Will Be Dismissed. Where a notice of appeal from an order of a surrogate determining the amount of transfer tax fails to state the grounds upon which the appeal is taken, such appeal will be dismissed. Matter of Stone, 56 Misc. Rep. 247, 107 N. Y. S. 385. 676. Procedure Where Appeal, and Application for Reappraisal by Motion and Order to Show Cause, Are Both Pending. In the Matter of Eaton, 55 Misc. Rep. 472, 106 N. Y. S. 682, it appears that the attorney for the Comptroller, who was dissatisfied with the taxing order, first procured an order to show cause why the appraisal should not be set aside and a reappraisal of the estate had, and in order to more fully protect the rights of the State Comptroller he also appealed from the order of the surrogate assessing the tax. Both proceedings were brought on for argument on the same day before the surrogate. The surrogate dismissed the appeal, holding that the order to show cause is broad enough to confer jurisdiction upon the surrogate to direct a reappraisal, and an order was entered setting aside the former appraisal and the order assessing the tax, and directing the county treasurer to make a new appraisal as indicated in the opinion of the surrogate. 677. No Distinction between Foreign or Domestic Executors. Surrogate Thomas held, in theMatter of Dotger, N. Y. Law Journal, February 19, 1907, that the Trans |