Id.; Not to Correct Error of Law. § 232 724. Id.; Where Assessment of Tax Was Without Jurisdiction. A surrogate has power on a motion to vacate so much of a decree assessing property subject to a transfer tax as was made without jurisdiction after the time to appeal from said order has expired. Matter of Jones, 54 Misc. Rep. 202; Matter of Silliman, 79 App. Div. 98, 80 N. Y. S. 336, 175 N. Y. 513. 725. Id.; Where Deduction of Debt Was Overlooked. Where, in assessing a transfer tax, one of the debts of the decedent was inadvertently overlooked, the surrogate under subdivision 6 of section 2481 of the Code of Civil Procedure may, upon application therefor, modify his decree by allowing the deduction and reducing the tax to the proper amount. Matter of Campbell, 50 Misc. Rep. 485. 726. Decree Not Opened to Correct an Error of Law. A decree of the surrogate cannot be opened to correct an error of law made in calculating executors' commissions, and the remedy is by an appeal from the decree. If the surrogate erred in allowing the commissions objected to, the error was one of law and not a clerical mistake. Matter of Monteith, 27 Misc. Rep. 163, 58 N. Y. S. 379. A surrogate is given no power by the statute (Code Civ. Proc., § 2481, subd. 6) to open a decree assessing the transfer tax, for errors of law nor for material errors of fact made as alleged in appraising firm assets too high, and in not making a sufficient deduction for firm debts. Matter of Wallace, 28 Misc. Rep. 603, 59 N. Y. S. 1084. § 232 Modification of Orders. 727. Decree Modified Where Legatee Not Notified of Surrogate's Determination. Although a legatee, exempt by law from taxation, has been duly notified of the time and place of the appraisal of the estate of the decedent who gave the legacy, and failed to appear, yet where the legatee has not been subsequently notified by the surrogate, as required by section 232 of the Tax Law, of his determination of the taxable value of the legacy, the surrogate may, in the absence of laches, entertain, in his discretion, an application made more than sixty days subsequent to the decree, to modify it, and may thereupon exempt the legatee from the transfer tax. Matter of Daly, 34 Misc. Rep. 148, 69 N. Y. S. 494. 728. When Surrogate Cannot Grant Relief in Regard to Debts. Where, at a transfer tax appraisal, alleged deductible debts of a decedent have not been urged before the appraiser, nor reserved for future action, as they may be in a proper case, and the time for an appeal from the order fixing the tax has expired, the surrogate is without jurisdiction to grant any relief in regard to said debts. Matter of Morgan, 36 Misc. Rep. 753, 74 N. Y. S. 478. In the Matter of Hamilton, 41 Misc. Rep. 268, 84 N. Y. S. 44, the court held that where no appeal has been taken in time from an order fixing the transfer tax, the surrogate has no power to modify his order and allow the executor a partial refund of the tax for a debt of the estate subsequently discovered. It would seem that section 225 of the Transfer Tax Law makes express provisions for a refund where there are debts subsequently discovered which were not considered on the appraisal, or passed upon by the surrogate when the order was entered fixing the tax. Comptroller's Right to. 729. Correction of Order Refused. § 232 A surrogate has no power to amend and correct an order by which a transfer tax was assessed upon a life interest in United States bonds, which were subsequently disclosed by the Court of Appeals to be exempt from taxation, especially where the tax was paid voluntarily and deliberately, more than five years ago, under a mistake of law. Matter of Von Post, 35 Misc. Rep. 367, 71 N. Y. S. 1039. 730. Surrogate Has No Power to Modify Order on Ex Parte Application. A surrogate has no power to modify ex parte an order assessing the transfer tax and permit the appraisal to be opened, in order that the executor may show that certain securities of his testator have been appraised higher than their actual market value. Matter of Fulton, 30 Misc. Rep. 70, 62 N. Y. S. 995. The syllabus in this case wrongly states that the surrogate has such power. Citing Matter of Schermerhorn, 38 App. Div. 350, 57 N. Y. S. 26. 731. When Surrogate May Vacate His Order. Where the surrogate has by order confirmed 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. 732. Reappraisal - Provision Applies Only to Errors of Fact. The provision of the Tax Law authorizing the State Comptroller to apply within two years from the entry of an order or decree fixing the transfer tax, for a new appraisal if he believes that the first appraisal was § 232 When Reappraisal Refused. fraudulently, collusively, or erroneously made, apply only to errors of fact, and where such a decree has erroneously determined, as matter of law, that a bequest made to an executor for his services to the testatrix is exempt, the Comptroller cannot procure a new appraisal. His sole remedy in such a case is by an appeal. Matter of Niven, 29 Misc. Rep. 550, 61 N. Y. S. 956. 733. Id. When Not Entitled to. Reappraisals will not be ordered on the motion of the State Comptroller upon the ground that since it was appraised the property has sold for a larger sum than it was valued at. Matter of Bruce, 59 N. Y. S. 1083. 734. Rehearing, When Refused. A rehearing of an appraisal for the transfer tax will not be granted the State Comptroller upon the contention that stocks of the estate, having no market or quoted value, have been appraised too low, unless he produces some definite evidence tending to show that the proof on a rehearing will increase the valuation. Matter of Johnson, 37 Misc. Rep. 542, 75 N. Y. S. 1046. 735. Improper to Raise Values on Reappraisal. On an application for a new appraisal, the appraiser is not authorized to appraise property included in the original appraisal at a higher valuation nor to reduce the allowance made upon the first appraisal for debts due by decedent and for administration expenses, although some of such alleged debts have been successfully disputed by the executors, and the expenses of administration have proved less than was estimated. Matter of Rice, 56 App. Div. 253, 68 N. Y. S. 1147. Id.; When Former Order Not Affected by 736. Conclusiveness of an Appraisal. $ 232 The surrogate has no power nearly six years after the entry of the order which was not appealed from, to amend it so as to conform to the appraiser's report, nor can he grant an order directing an appraisal of personal property which was in the hands of the executors at the time the first appraisal was made, especially where it appears that such personal property was brought to the attention of the appraiser, and that he held that it was not subject to the tax. Matter of Crerar, 56 App. Div. 479, 67 N. Y. S. 795. 737. When Report Need Not Be Remitted for Rehearing and Reappraisal. Ordinarily, where a determination is set aside on the ground of newly-discovered evidence, the order setting it aside should not contain an adjudication contrary to the former determination, but should provide for a new hearing upon which both parties may be heard. But this rule does not make it improper for a surrogate, when incontrovertible evidence is presented to him, establishing that a transfer is not subject to transfer tax which has been assessed and fixed upon it, from modifying his order in this respect without remitting the matter to the official appraiser for a rehearing and reappraisal. Matter of Willets, 119 App. Div. 119; affd., 190 N. Y. 527. 738. When New Appraisal Proceedings Will Not Affect Former Order. Where the report of the appraiser has found that the interests of certain life beneficiaries and remaindermen are unascertainable and could not then be determined, and upon the confirmation of such report an order is entered from which no appeal was taken, such |