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Id.; When Writ Will Be Dismissed.

§ 232

statute of, or an authority exercised under a State, the validity of the statute or authority must have been "drawn in question" on the grounds of their being repugnant to the Constitution, laws or treaties of the United States. When no such ground has been presented to or considered by the courts of the State, it cannot be said that those courts have disregarded the Constitution of the United States, and this court has no jurisdiction. Scudder v. Comptroller of New York, 175 U. S. 32-36.

706. When Writ of Error Will Be Dismissed.

Where the best that can be said for the plaintiffs in error is that the action of the State court was ambiguous, the United States Supreme Court will resolve the ambiguity against the parties complaining, who are bound to show clearly that a Federal right was impaired, rather than endeavor to spell out a Federal question to aid a defense which is merely technical and destitute of substantial merit. Stickney v. Kelsey, 209 U. S. 419.

707. Corresponding Sections of Former Acts Relating to Appeals.

Section 13 of the Act of 1885 provided for appeals to the surrogate from the taxing order by any person dissatisfied with the appraisement or assessment, on paying or giving security to pay all costs, together with whatever tax shall be fixed by the court. This provision was re-enacted by chapter 399, Laws 1892 (§ 13), in effect May 1st of that year, except that the provision in reference to paying or giving security for costs was omitted, and a new provision added requiring the appellant to state his grounds of appeal. Section 13 of the Act of 1892 became section 232 of the

§ 232

Former Acts

Appeals, etc.

Act of 1896, in effect June 15th of that year, and reenacted the provisions in reference to appeals, giving "the Comptroller of the State of New York" also the right to appeal.

This provision was substantially re-enacted by chapter 368, Laws 1905 (§ 232), in effect June 1st of that year.

Application to justice of Supreme Court for reappraisal. This provision first appeared in section 232 of chapter 908, Laws 1896, in effect June 15th of that year, and was re-enacted as a part of section 232 of chapter 368, Laws 1905. The statute formerly provided that this application for reappraisal must be made to a justice of the Supreme Court of the judicial district in which the former owner of such estate resided." By chapter 310, Laws of 1908, in effect May 18th of that year, this provision was amended so that application for a reappraisal under section 232 could be made to a justice of the judicial district" embracing the Surrogate's Court in which the order or decree has been filed," as the former provision would not apply to a nonresident estate in which it was desired to have a reappraisal under this section of the Transfer Tax Law.

Further reference to the provision of § 232 of the Tax Law, see chap ter XVIII, Modificatiton of Orders.

Reappraisal.

CHAPTER XVIII.

MODIFICATION OF ORDERS-REAPPRAISAL.

(8 232, Tax Law.)

708. The order fixing tax is an entirety.

709. When order is res adjudicata. 710. Where former order is not res adjudicata.

711. When Surrogate can only

change decree as authorized by Appellate Court. 712. When order fixing tax should not be opened.

713. When Surrogate without power to modify a decree. 714. Decree vacated-where stat

ute unconstitutional.

715. Order modified although time to appeal has expired. 716. When Surrogate can modify his decree.

717. Finality of Surrogate's deter

mination.

718. Surrogate's power to decree previous order erroneous. 719. Surrogate's power under subd. 6, sec. 2481 of the Code. 720. Modification of order upon error of fact.

721. Id.; failure to give notice of appraisal.

722. Id.; when appeal not a bar to subsequent application to amend order.

723. Id.; order may be corrected when made under a mis

take of fact.

724. Id.; where assessment of tax was without jurisdiction. 725. Id.; where deduction of debt was overlooked.

726. Decree not opened to correct an error of law.

727. Decree modified — where legatee not notified of Surrogate's determination. 728. When Surrogate cannot grant relief in regard to debts. 729. Correction of order refused. 730. Surrogate has no power to modify order on ex parte application.

731. When Surrogate may vacate his order.

732. Reappraisal-provision applies only to errors of fact. 733. Id.; when not entitled to. 734. Rehearing-when refused. 735. Improper to raise values on reappraisal.

736. Conclusiveness praisal.

of an ap

737. When report need not be remitted for rehearing and reappraisal.

738. When new appraisal will not affect former order. 739. When order will be set aside. 740. Surrogate's discretion in modifying orders subject to review.

741. The Supreme Court cannot vacate order for reap praisal.

742. The Comptroller may either apply for a reappraisal or appeal.

§ 232

Modification of Orders.

708. The Order Fixing Tax Is an Entirety.

The order fixing the transfer tax upon an estate is an entirety, and a party claiming to be aggrieved thereby and taking an appeal should present upon that appeal every objection which he has to the order. If the appellant fails to raise any question which he might have raised on his appeal, a second appeal from such order will not be allowed. If the omission was excusable, he should have applied to the surrogate, upon affidavits excusing the omission, to modify his original order by taxing the remainder interests in the trust fund at what he conceived to be the proper rate. Matter of Cook, 194 N. Y. 400.

709. When Order Is Res Adjudicata.

Application was made by the executors of an estate on affidavit, petition and notice of motion returnable before the surrogate March 26, 1907, for an order vacating and setting aside a former order entered December 5, 1902, assessing a transfer tax upon the estate, the affidavit showing that the shares of twelve contestants had been increased by reason of litigation over the judicial settlement of the estate, which resulted in surcharging the accounts of said executors in various amounts, thereby increasing the shares of certain legatees, such increase not having been taxed in the former proceedings. The surrogate held that the order entered in 1902 was res adjudicata, and denied the petitioners' motion, (citing Matter of Rice, 56 App. Div. 254; Matter of Mowry, 89 App. Div. 226; Matter of Connolly, 38 Misc. 466). Matter of Corbit, N. Y. Law Journal, May 28, 1907. gerald.

Surrogate Fitz

When Order Is Not Res Adjudicata.

710. When Former Order Is Not Res Adjudicata.

§ 232

Although the valuation of a remainder was made during the life of the life tenant in a proceeding to determine a transfer tax, that valuation of the remainder is not binding upon remaindermen not notified, and hence the confirmation thereof by the surrogate is not res adjudicata as against the State in a subsequent proceeding brought by the remaindermen to determine the amount of this transfer tax under chapter 284, Laws of 1897, in reference to the appraisal of estates in expectancy. (Section 230, Tax Law.) Matter of Mason, 120 App. Div. 738; affd. (Matter of Naylor), 189 N. Y. 556.

711. When Surrogate Can Only Change Decree as Authorized by Appellate Court.

After determination by the Court of Appeals the surrogate has no authority to change the decision formerly made by him except as authorized by the appellate court. Matter of Cook, 125 App. Div. 114; affd., 194 N. Y. 400.

712. When Order Fixing Transfer Tax Should Not Be Opened.

By virtue of subdivision 6 of section 2481 of the Code of Civil Procedure empowering the surrogate to vacate, modify or set aside a prior decree or order, he may vacate an order fixing a transfer tax and refer the matter back for reappraisement. But where a surrogate has fixed a transfer tax based upon an itemized valuation in the executor's affidavit, such determination should be treated as a solemn decree of a court of record and should not be set aside on a petition by the executor, stating merely that by mistake his valuation was largely excessive, which statement is

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