In re Wolfe

21 N.Y.S. 522, 50 N.Y. St. Rep. 122

• Court: New York Supreme Court
• Decided: December 16, 1892
• Status: Published

Opinion

VAN BRUNT, P. J.

The facts involved in this appeal are the same as those in the case decided herewith, (21 N. Y. Supp. 515,) in which the question of the liability of Grace Church and the Metropolitan Museum of Art to the tax has been discussed and disposed of, and therefore it is not necessary in this opinion to repeat what has already been said therein. In the decree holding the said institutions liable for the tax the learned surrogate also held that the executors of the decedent were not personally liable for the amount of the tax due upon the legacies to said legatees, nor for the costs and disbursements herein. The theory upon which the decision is based was that the, executors had acted in good faith, relying upon the decree of the surrogate’s court in paying over the legacies in question without retaining the amount of the tax. But if the view which we have arrived at upon the appeal relative to the liability of these institutions for the tax is correct, then we do not see how the executors can escape the liability imposed by statute. If the surrogate had no jurisdiction in the proceeding to entertain the question which he did of the exemption of these institutions from the inheritance tax, then it is difficult to see how such decree could be a protection to anybody for anything done in pursuance thereof. If the surrogate had no jurisdiction, he had no power to make a decree which would be of any effect whatever. If the question related merely to a matter of regularity in a proceeding of which the surrogate had jurisdiction, then, perhaps, the conclusion at which he arrived might have been upheld; but where no jurisdiction of the ■subject-matter—viz. of the question of exemption of these corporations from the tax—has been obtained by the surrogate, his adjudication upon that subject is absolutely null and void. Therefore, as we have held that the surrogate had no jurisdiction in the proceeding to determine this question of exemption, it necessarily follows that the liabilities of the parties remained precisely the same as though no such proceedings had been instituted. We think, therefore, that this portion of the decree with reference to the personal liability of the executors was wrong, and should be reversed. As to the question of costs and disbursements of the proceedings, that was a matter within the discretion of the surrogate, and he had a right to make the adjudication as to them which he did. The decree, therefore, should be modified in the ¡respect named, and affirmed as modified, without costs. All concur.