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Sec. 393. Power to Vacate Assessment.

In New York the power of the surrogate to reverse or modify his own decree has been a fruitful source of litigation and of much difference of opinion. Changes in the law enlarging the powers of the surrogate have rendered obsolete some of the early decisions and it seems to be settled now that the surrogate can vacate or modify his decree,1 even after the expiration of the time for appeal, but only as the same power would be exercised by a court, of record.3 The power was held properly exercised where the surrogate acted under an unconstitutional statute, or beyond his jurisdiction,5 or in case of clerical errors, or other manifest error, and not merely as to questions of law, or disputed questions of fact."

1 In re Warren, 62 Misc. 444, 116 N. Y. Suppl. 1034. In re Silliman, 175 N. Y. 513, 67 N. E. 1090, affirming 79 N. Y. App. Div. 98, 80 N. Y. Suppl. 336, reversing 77 N. Y. Suppl. 267. Contra, In re Crerar, 56 N. Y. App. Div. 479, 67 N. Y. Suppl. 795, 9 Ann. Cas. 101. In re Von Post, 35 Misc. 367, 71 N. Y. Suppl. 1039.

2 In re Mather, 41 Misc. Rep. 414, 84 N. Y. Suppl. 1105. In re Daly, 34 Misc. Rep. 148, 69 N. Y. Suppl. 494. Contra, In re Schermerhorn, 38 N. Y. App.

Div. 350, 57 N. Y. Suppl. 26.

3 In re Barnum, 129 N. Y. App. Div. 418, 114 N. Y. Suppl. 33.

In re Scrimgeour, 175 N. Y. 507, 67 N. E. 1089, affirming 80 N. Y. App. Div. 388, 80 N. Y. Suppl. 636, 78 N. Y. Suppl. 971 (after time for appeal had gone by). See In re Backhouse, 185 N. Y. 544, 77 N. E. 1181, affirming 110 N. Y. App. Div. 737, 96 N. Y. Suppl. 466.

In re Coogan, 27 Misc. Rep. 563, 59 N. Y. Suppl. 111. In re Backhouse, 185 N. Y. 544, 77 N. E. 1181, affirming 110 N. Y. App. Div. 737, 96 N. Y. Suppl. 466.

• In re Campbell, 50 Misc. 485, 100 N. Y. Suppl. 637 (omission of debt). In re Earle, 74 N. Y. App. Div. 458, 77 N. Y. Suppl. 503, affirming 71 N. Y. Suppl. 1038 (defective report).

7 Morgan v. Cowie, 49 N. Y. App. Div. 612, 63 N. Y. Suppl. 608, (where legatee died before testator). In re Willet, 51 Misc. 176, 100 N. Y. Suppl. 850, affirmed 119 N. Y. App. Div. 119, 104 N. Y. Suppl. 850. In re Cameron, 181 N. Y. 560, 74 N. E. 1115, affirming 97 N. Y. App. Div. 436, 89 N. Y. Suppl. 977.

After the surrogate had determined the cash value of the estate subject to tax, certain judgments on claims which the executor had denied were recovered. The court holds that the power of the surrogate to correct errors is limited to clerical errors or mistakes which do not involve questions of law. In re Connelly, 38 Misc. Rep. 466, 77 N. Y. Suppl. 1032.

The surrogate's court has no authority to vacate its decree fixing the tax on legacies simply on the ground that certain things were included and excluded erroneously on the appraisal, as this is not a clerical error, but an error of law within the section of the code. In re Wallace, 28 Misc. Rep. 603, 59 N. Y. Suppl. 1084.

'Evidence of a sale of property after the appraisal lower than the appraised valuation does not give the surrogate power to modify his decree of appraisal. In re Lowry, 89 N. Y. App. Div. 226, 85 N. Y. Suppl. 924. See In re Fulton, 30 Misc. Rep. 70, 62 N. Y. Suppl. 995 (excessive valuation sufficient ground for re-opening assessment).

Newly Discovered Debt. The surrogate has no power to modify an order made within his jurisdiction and allow a partial refund simply because of a newly discovered debt due by the estate after the time for appeal has expired. In re Hamilton, 41 Misc. Rep. 268, 84 N. Y. Suppl. 44.

Sec. 394. Proper Decree where Statute Misconstrued by Taxing Officials.

Where the court finds that an unsound interpretation of the statute was adopted and enforced by the officers charged with the administration of the law, the ends of justice require that the interpretation of the statute should not be foreclosed by the decree of the court although there is nothing in the record to enable the court to say that the statute was by the collector mistakingly construed. Therefore the proceedings were dismissed without prejudice.

High v. Coyne, 178 U. S. 111, 20 S. Ct. 747, 44 L. Ed. 997. Fidelity Insurance Co. v. McClain, 178 U. S. 113, 20 S. Ct. 774, 44 L. Ed. 998.

CHAPTER XLIII.

COLLECTION OF TAX.

§ 395. Collection a Proper Function of Probate Courts. § 396. Absence of Special Machinery for Collection.

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§ 403.

§ 404.

Retroactive Statute as to Limitation.
Practice.

405. Tax Officials Joined in Litigation between Other Parties. [Law of date when proceedings began governs proceedings for collection, see ante, s. 22.]

[Order of court on distribution no defence, see ante, s. 304.]

Sec. 395. Collection a Proper Function of Probate Courts. The collection of inheritance taxes is a proper function of the probate court.1

Safety Deposit Companies.-The Illinois act requiring safety deposit companies to give notice to state officials before delivering deposits is not void as making them in effect trustees for the state to assist it in collecting the tax, or as subjecting property to a public use without compensation, or as subjecting property to unreasonable searches and seizures.2

1 In re McPherson, 104 N. Y. 306, 324, 10 N. E. 685, 58 Am. Rep. 502. In re Wolfe, 137 N. Y. 205, 33 N. E. 156, reversing 2 Connolly 600. State v. Probate Court, 112 Minn. 279, 128 N. W. 18, 21. [Effect of repeal, see ante, s. 91.]

National Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N. E. 973.

Sec. 396. Absence of Special Machinery for Collection.

The fact that the statute does not contain special provision for the ascertainment and collection of the tax cannot defeat the state's right to a recovery. Where a plaintiff seeks to obtain a determination that the state has no right to any tax, the court will not adjudicate whether there remains a legal method of collecting the tax, as this is a matter which will be decided when the state seeks to enforce its right.2

1 Fisher v. State, 106 Md. 104, 66 A. 661. See In re Astor, 20 Abb. N. Cas. 405 6 Dem. Surr. 402.

The court notices that no specific mode is designated for the collection of the tax under the act of 1909, as the court says that the legislature properly assumed that the collection had been covered elsewhere. The statute of 1893, c. 174, embraced within itself a complete system of taxation; under section 15 the duty and method of collecting the tax is provided, and this remedy is properly applied under the statute of 1909. Knox v. Emerson, 123 Tenn. 409, 131 S. W. 972.

The fact that there is no established practice of the probate court in like cases made and provided for the service of citations out of that court if it is a fact does not make the law unconstitutional. If the executor does not perform his duties then the method usual in such cases should doubtless prove efficacious. The practice prescribed by statute to enforce collection seems clear enough. Union Trust Co. v. Durfee, 125 Mich. 487, 84 N. W. 1101, 7 Detroit Leg. N. 597.

2 Trippet v. State, 149 Cal. 521, 530, 86 P. 1084, 8 L. R. A. (N. S.) 1210. [Effect of absence of special provision for appraisal, see ss. 339, 344.]

Sec. 397. Concurrent Jurisdiction to Recover.

Jurisdiction in the probate court does not necessarily preclude concurrent jurisdiction in other courts to recover the tax.

Fidelity & Deposit Co. v. Crenshaw, 120 Tenn. 606, 110 S. W. 1017.

The fact that the original suit for the settlement of an estate is still pending in chancery court and the statute provides that the inheritance tax may be collected in such cases in such situs does not prevent jurisdiction by the county court under section 22 of the Tenn. St. 1893, c. 174. Harrison v. Johnston, 109 Tenn. 245, 70 S. W. 414.

Sec. 398. Actions of Contract against Beneficiary.

If an administrator or executor actually pays over money of his decedent to a collateral distributee or legatee without retaining therefrom a tax, it becomes to the extent of the tax money had and received by him for the use of the state and an action may be maintained against such distributee or legatee therefor.

Montague v. State, 54 Md. 481, 487.

La. St. 1855, s. 7, declares that every person not domiciled in Louisiana and not being a citizen of any state or territory shall pay an inheritance tax of ten per cent. This tax is not a debt of the succession, it is simply a debt of the heir who happens to be domiciled in a foreign country, and therefore a suit to recover this tax should be brought directly against the heirs who under the statute owe it to the state. Succession of Pargoud, 13 La. Ann. 367.

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The responsibility for collection of the tax was early imposed in Pennsylvania on the register of wills, or it may be the treasurer of the county where the taxable property is situated, and a mere revenue agent should not be joined as a party to the proceedings.3

1Alleghany County v. Stengel, 213 Pa. St. 493, 63 A. 58.

The official bond of the register of wills does not bind him to turn over collateral inheritance taxes collected, as under the statute of 1841, c. 99, imposing collection of the inheritance taxes on the register, the legislature did not rely on his general official bond as a security for the performance of this new duty, but required a special bond for this purpose. Commonwealth v. Toms, 45 Pa. St. (9 Wright) 408.

*See San Diego v. Schwartz, 145 Cal. 49, 78 P. 231.

The words "proper county" evidently refer to the county of the surrogate first properly acquiring jurisdiction, and the surrogate of a county retains such jurisdiction throughout all proceedings even should there be real estate in every courty in the state. In re Keenan, 5 N. Y. Suppl. 200, 1 Con. Surr. 226.

The fact that a revenue agent was joined with the county atcorney in a proceeding to collect an inheritance tax did not render the petition bad on demurrer although a motion to strike the name of the revenue agent from the petition would have been proper. Commonwealth v. Gaulbert, 134 Ky. 157, 119 S. W. 779.

Sec. 400. Fees of Collecting Officers.

In almost all the states the system prevails of paying the collection officers a salary, with no fees in addition,1 but in Tennessee compensation is on the percentage basis.2

1 San Diego v. Schwartz, 145 Cal. 49, 78 P. 231. Succession of Levy, 115 La. 378, 39 S. 37, affirmed Cahen v. Brewster, 203 U. S. 552, 27 S. Ct. 174, 51 L. Ed. 310. Banks v. State, 60 Md. 305 (register of wills).

Shelton v. Campbell, 109 Tenn. 690, 72 S. W. 112 (state revenue agent entitled to a fee of five per cent as attorney for county clerk under the act of 1893). Harrison v. Johnston, 109 Tenn. 245, 70 S. W. 414 (district attorney allowed no fee under the act of 1893).

In a proceeding under the Tennessee statute of 1909, which is but a supplement of the statute of 1893, the attorney of the county court clerk is entitled to a fee to be paid by the taxpayer. Knox v. Emerson, 123 Tenn. 409, 131 S. W. 972.

Sec. 401. When Proceedings Premature.

Authority to commence proceedings after refusal to pay the tax implies that no process to enforce the tax can be instituted within the time allowed for payment, and any such proceeding is premature.

Frazer v. People, 3 N. Y. Suppl. 134 6 Dem. Surr. 174 (no costs against the taxpayer should be allowed).

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A general statute of limitations will not usually cover inheritance taxes, but where the state fails to collect the collateral inheritance tax for a period of twenty years from the death of the

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