Laughlin, J.:
The petition upon which the writ issued shows that petitioners Emma L. Moller and Isaac' P. Smith aré the executors and trustees Under the last will and testament of Joseph H. ■ Godwin, deceased; that the decedent was a. resident of the county of New York and died on the 9th day of August, 1903; that his will was duly ■admitted to probate by' the surrogate of the county of New York and letters testamentary were issued to the petitioners on the -Still day of September, 1903, whereupon they qualified and entered Upon the discharge.of their duties; that upon'the completed assessment roll for the borough of Manhattan for the year 1904, under index number 1,541, Isaac P. Smith, .as executor an.d trustee of Joseph H. Godwin, residence 45 West Seventy-sixth street, was assessed $2,270.18 on a valuation of personal estáte of $150,000; that the residence thus given in the assessment roll was his correct ¡residence; that on the assessment roll for the borough of The Bronx for the'same year under, index number 76 in the column under the heading “ Personal estate assessed to ” appears “ Moller, Emma L. and Isaac P. Smith as executors and trustees estate of Joseph H. Goodwin
Assuming for the present that notwithstanding the fact that the entire city constitutes but a single tax district, still individuals and representatives of estates must be assessed for personal property in the borough in which they reside, and that where there are two. representatives of an estate residing in different boroughs each must be assessed in the borough in which he resides for one-half the trust estate—the provisions of law by which the assessment rolls pre-. pared by the deputies in the respective boroughs do not become binding until approved by the board of taxes and assessments, which sits and acts for all the boroughs, are important in determining the questions presented by the appeal. There is no foundation for the view that the tax against the executors and trustees should be levied in the borough wherein the will was admitted to probate. No such criterion for determining the question is found in the statute. As has been seen, it is conceded that the tax against Smith, as executor and trustee in the borough of Manhattan, was valid; and it is clear under the authorities that if the executrix resided in another tax district she could and should have been assessed there for one-half the estate. (People ex rel. Beaman v. Feitner, 168 N. Y. 360; People ex rel. Kellogg v. Wells, 101 App. Div. 600.) It is likewise' clear under the authorities that in such case it would be presumed that the assessment against each executor or trustee was only one-half the value of the estate, and it would be incumbent on the relator to show the contrary. (People ex rel. Kellogg v. Wells, supra.) We have also recently decided that an assessment in form against two trustees, one of whom resided in the tax district wherein the [530]*530assessment was levied, and the otlier of whom was a non-resident of the State, was valid and enforeible, and it would be presumed that although the assessment in form was against both, that it was only intended to assess the resident and not for the value of the entire estate, but only one-half. (People ex rel. Kellogg v. Wells, supra.) If it had been the intention of the deputy commissioner for The Bronx who made the assessment in the first instance, or of the board in confirming it, to assess Smith as well as the executrix, it is fair to assume that he would have assessed him Separately, as required by the law, in the alphabetical order of his surname and giving his residence, and for one-half the trust estate. Instead, we find the assessment against the executrix in the alphabetical order of her surname and with a-residence given which is hers and not his. If it was'the duty of the board having charge of the confirmation of the assessments in all of the boroughs to assess Smith as executor and trustee in Manhattan, and Moller as executrix and trustee in The Bronx, each for one-half the value of the trust estate, then, it not appearing that the aggregate, trust estate did not equal or exceed $300,000; it may justly be presumed that they were aware of their duty and of the facts shown by the respective rolls of Manhattan and The Bronx and intended to levy the assessments accordingly. The- addition of the executor’s name in the assessment in The Bronx may, therefore, be treated as having been inserted with a view to more accurately describing the estate, on account of which the executrix was assessed. It is manifest that it was not intended as an assessment against the executor and trustee Smith, and that there was not double taxation.
There is no merit in the contention that the assessment is rendered void by the extra-“o” in the surname of the decedent. That is a mere clerical error which may be disregarded as not prejudicial. (McLean v. Horn, 17 N. Y. Supp. 119; People ex rel. United States Trust Co. v. Barker, 21 id. 704.)
The remaining question is whether, on account of the city of Greater New York being a single tax district, a valid tax for personal property may be imposed in any borough upon a non-resident of the borough who, however, resides in some other borough without waiver, acquiescence or estoppel on his part. I am of opinion that the question must be answered in the negative. If all the bor[531]
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Laughlin, J.:
The petition upon which the writ issued shows that petitioners Emma L. Moller and Isaac' P. Smith aré the executors and trustees Under the last will and testament of Joseph H. ■ Godwin, deceased; that the decedent was a. resident of the county of New York and died on the 9th day of August, 1903; that his will was duly ■admitted to probate by' the surrogate of the county of New York and letters testamentary were issued to the petitioners on the -Still day of September, 1903, whereupon they qualified and entered Upon the discharge.of their duties; that upon'the completed assessment roll for the borough of Manhattan for the year 1904, under index number 1,541, Isaac P. Smith, .as executor an.d trustee of Joseph H. Godwin, residence 45 West Seventy-sixth street, was assessed $2,270.18 on a valuation of personal estáte of $150,000; that the residence thus given in the assessment roll was his correct ¡residence; that on the assessment roll for the borough of The Bronx for the'same year under, index number 76 in the column under the heading “ Personal estate assessed to ” appears “ Moller, Emma L. and Isaac P. Smith as executors and trustees estate of Joseph H. Goodwin
Assuming for the present that notwithstanding the fact that the entire city constitutes but a single tax district, still individuals and representatives of estates must be assessed for personal property in the borough in which they reside, and that where there are two. representatives of an estate residing in different boroughs each must be assessed in the borough in which he resides for one-half the trust estate—the provisions of law by which the assessment rolls pre-. pared by the deputies in the respective boroughs do not become binding until approved by the board of taxes and assessments, which sits and acts for all the boroughs, are important in determining the questions presented by the appeal. There is no foundation for the view that the tax against the executors and trustees should be levied in the borough wherein the will was admitted to probate. No such criterion for determining the question is found in the statute. As has been seen, it is conceded that the tax against Smith, as executor and trustee in the borough of Manhattan, was valid; and it is clear under the authorities that if the executrix resided in another tax district she could and should have been assessed there for one-half the estate. (People ex rel. Beaman v. Feitner, 168 N. Y. 360; People ex rel. Kellogg v. Wells, 101 App. Div. 600.) It is likewise' clear under the authorities that in such case it would be presumed that the assessment against each executor or trustee was only one-half the value of the estate, and it would be incumbent on the relator to show the contrary. (People ex rel. Kellogg v. Wells, supra.) We have also recently decided that an assessment in form against two trustees, one of whom resided in the tax district wherein the [530]*530assessment was levied, and the otlier of whom was a non-resident of the State, was valid and enforeible, and it would be presumed that although the assessment in form was against both, that it was only intended to assess the resident and not for the value of the entire estate, but only one-half. (People ex rel. Kellogg v. Wells, supra.) If it had been the intention of the deputy commissioner for The Bronx who made the assessment in the first instance, or of the board in confirming it, to assess Smith as well as the executrix, it is fair to assume that he would have assessed him Separately, as required by the law, in the alphabetical order of his surname and giving his residence, and for one-half the trust estate. Instead, we find the assessment against the executrix in the alphabetical order of her surname and with a-residence given which is hers and not his. If it was'the duty of the board having charge of the confirmation of the assessments in all of the boroughs to assess Smith as executor and trustee in Manhattan, and Moller as executrix and trustee in The Bronx, each for one-half the value of the trust estate, then, it not appearing that the aggregate, trust estate did not equal or exceed $300,000; it may justly be presumed that they were aware of their duty and of the facts shown by the respective rolls of Manhattan and The Bronx and intended to levy the assessments accordingly. The- addition of the executor’s name in the assessment in The Bronx may, therefore, be treated as having been inserted with a view to more accurately describing the estate, on account of which the executrix was assessed. It is manifest that it was not intended as an assessment against the executor and trustee Smith, and that there was not double taxation.
There is no merit in the contention that the assessment is rendered void by the extra-“o” in the surname of the decedent. That is a mere clerical error which may be disregarded as not prejudicial. (McLean v. Horn, 17 N. Y. Supp. 119; People ex rel. United States Trust Co. v. Barker, 21 id. 704.)
The remaining question is whether, on account of the city of Greater New York being a single tax district, a valid tax for personal property may be imposed in any borough upon a non-resident of the borough who, however, resides in some other borough without waiver, acquiescence or estoppel on his part. I am of opinion that the question must be answered in the negative. If all the bor[531]*531oughs were in a single county there might be force in the contention that it was immaterial in which borough the assessment was levied, but such, is not the case, and it is manifest that the Legislature intended, in accordance with the long-settled policy of the State, to assess the residents of each county in that county for their personal property to the end that the expenses of the county government, as well as of the State government, might be properly defrayed. As tending to support this view we find that the Greater .New York charter (§§ 892, 894, as amd. by Laws of 1903, chap. 454) requires that there shall be a separate assessment roll in each of the boroughs, upon which the residents of the boroughs shall be assessed for their personal property. We also find in the latter section a provision for transferring an assessment on personal property erroneously made in one borough against a resident of another to the appropriate assessment roll in the borough of his residence ; but even this, the Legislature recognized, could not become a valid tax without a further notice and hearing. It is quite clear, therefore, I think, that for the purpose of assessing trust property where the executors or other trustees reside in different boroughs the assessments should be levied as if they lived in different tax districts and were assessed by different boards of assessors. It follows, therefore, that the assessment sought to be reviewed is valid and regular and the writ should have been quashed.
The order should, therefore, be reversed, with fifty dollars costs and disbursements, and motion granted, with ten dollars costs.
Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented; O’Brien, P. J., dissented on opinion of Leventritt,* J.
Order revérsed, with fifty dollars costs and disbursements, and motion granted, with ten dollars costs.
Godwin.— [Rep.