In re the Appraisal of the Property of O'Donohue

44 A.D. 186, 60 N.Y.S. 690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1899
• Status: Published

Opinion

Patterson, J.:

The order appealed from in this matter must be affirmed. It denies a motion made to vacate an order appointing an appraiser of the property of the estate of Joseph J. O’Donohue, deceased, under the provisions of chapter 908 of the Laws of 1896, as amended by chapter 284 of the Laws of 1897. But little need be added to the views expressed in the opinion of Mr. Surrogate Yarnuai, written upon the denial of the motion.

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The position of the appellant seems to be that the- surrogate was-without jurisdiction to appoint an appraiser, because there ivas nothing in the way of proof before him to show what, if any, specific property of the decedent was under the law subject to a transfer tax. The order of appointment was made upon the petition of the Comptroller of the State of New York, in which he states, upon information and belief, that the will of Joseph J. O’Donoliue was duly admitted to pro’bate and that the property. of the decedent, passing by the will, or some portion of such property, or some interest therein, is subject to the payment of the tax imposed by law in relation to taxable transfers of property. It is claimed by the appellant that this statement in the petition concerning the ■ decedent’s property was insufficient.

The power of the surrogate to appoint cm appraiser does.not depend upon proof being furnished to him of the condition and situation of a decedent’s property at the time of his death and which is transferred by will or by operation' of law. It is true that by the terms of section 230 of the statute the surrogate is authorized to appoint an appraiser to fix the fair market value of property of persons whose estates, shall be subject to the payment of any tax imposed by the law. He is given the authority to appoint some one to fix the fair market value of the property of those persons whose property is transferred under the provisions of section 220 of the law. The appointment may be made upon the application of any interested party, including the State Comptroller, county treasurers or the comptroller of the city of Hew York, or the surrogate may, upon his own motion, whenever occasion requires, appoint a competent person to fix the fair market value of the property. Where, as in this case, there is a will duly admitted to probate, by the terms of which property is disposed of and that is brought to the' attention of the surrogate by petition, or is known to him officially,his power to appoint an appraiser exists. In The Matter of Westurn (152 N. Y. 100) it was insisted that an appointment of an appraiser and the fixing of a tax was premature because no appraisement could be made and no tax assessed until an opportunity had been given to the executors to ascertain what claims, if any, existed against the estate which might be deducted from the value of the estate of the decedent in order to show what amount was taxable. That contention was rejected by the court, and it would follow that the power to appoint the appraiser does not depend upon a precedent ascertainment or proof of what the assets or the condition of the estate may be. We think the jurisdiction of the surrogate to appoint an .appraiser is one that may be exercised with or without a petition and of his own motion, whenever in the sound exercise of his discretion he deems it proper to do. so, in a case in which he is officially cognizant of the fact that property has been transferred in the manner mentioned in section 220 of the act. The amount and the value of the estate is to be ascertained through the appraisement. A tax is not imposed by the appointment of an appraiser, nor by the surrogate who is only an assessor and fixes the amount. By such appointment a tribunal is constituted to determine what, if any, property is liable to. tax. The tax is imposed by the statute and made a lien upon the property and the proceedings of the appraiser and of- the surrogate are subject to review. If the surrogate may,, of 'his own motion, appoint an appraiser upon knowledge he possesses and without petition,, his authority is not limited or circuniscribed because a petition is presented by a competent person, with, allegations made, upon information and belief. He may supplement the petition by his own official knowledge or act . independently of it.

The order appealed from must be affirmed, with ten dollars costs- and disbursements.

Van Bbunt, P. J., Barrett, O’Brien and Ingraham, JJ.,. concurred.

Order affirmed, with ten dollars costs and disbursements..

The following is the opinion of Mr. Surrogate Varnum :

Varnum, Surrogate:

In this matter a transfer tax appraiser was appointed on the petition of the Comptroller of the State of New York, the executors claiming that no part of the estate was taxable and declining to apply for one. The executors appeared specially before the appraiser for the purpose of objecting to his jurisdiction and that of this court, and filed affidavits to the eifect that the decedent’s property consisted only of realty, and'less than §10,000 of personalty, and that no property had been transferred by him in contemplation of death. The appraiser proposing to continue the appraisal, an application was made to Mr. Surrogate Arnold to vacate the order appointing him and a stay granted pending its determination. The matter has now been resubmitted to me, the ground on which it is sought to vacate the appointment being that the petition of the Comptroller did not contain sufficient allegations to support the order. From the language of section 230 of chapter 908 of the Laws' of 1896, as amended by section 6 of chapter 284 of the Laws of 1897, it appears that the surrogate- may appoint an appraiser without any petition at all “ upon his own motion.” See Matter of Westurn (152 N. Y. 93, at p. 96), where it is said that the surrogate in that case appointed an appraiser “apparently on his own motion,” and page 101, where such'a course seems to be approved. (See, also, Matter of Astor, 6 Dem. 402, and Matter of Wolfe, 137 N. Y. 205.) In the latter case (p. 212) the court says that when the machinery of the act is set in motion by the surrogate, either on application “ or upon his own motion,” he is at once invested with the office and functions of an ordinary tax assessor. The claim of the executors seems to be based on the words in' the section of statute already cited, which provide'for the appointment of an appraiser for the “ property of persons whose estates shall be subject to the payment of' any tax.” In effect, they ask the court to determine that the property is taxable before appointing an appraiser. This determination is the function of the appraiser, subject to the review of the surrogate. (See § 232 of the act of 1896, as amd. by § 7, chap. 284, Laws of 1897.) There is nothing inconsistent with this-in Matter of Wolfe (supra), where (at p. 212) it is said that the surrogate “ must decide whether the property is taxable, for that fact-lies at the foundation of his-jurisdiction and is of the essence of his right to proceed with the assessment,” The surrogate, by appointing an appraiser, is taking the first step prescribed by the act,, to the end that he may decide whether the property is taxable. If it is, "that fact” is “the foundation” of his right to assess the same. The general jurisdiction of the surrogate to appoint an appraiser seems to attach whenever the conditions specified in section 229 of the act of 1896 are present; for example, where, as here, the court had jurisdiction to issue letters testamentary on the estate. (Matter of Hathaway, Suit. Decs. 1899, p. 296.) The foregoing considerations lead me to deny the application, and the order staying proceedings-before the appraiser will be vacated.