
    In the Matter of the Collection of the Transfer Tax on the Estate of Winifred Winters, Deceased.
    
      (Surrogate’s Court, Erie County,
    
    
      Filed October, 1897.)
    Transfer Tax- — Appraisal Made Without Notice to Hete.
    Subsequent to the appraisal of the property of the estate, but before the tax was paid, a judicial settlement of the accounts of the administrators was had, in which it was determined that one who had not been cited in the transfer tax proceeding was an heir at law of the decedent. Held, that, as the tax would be a lien upon the property until paid, she was interested in such proceeding; that it was void as to her because she had no notice thereof,' and that the report of the appraiser, although confirmed by the surrogate, should be set aside.
    Proceedings under tbe Transfer Tax Act.
    Hamilton Ward, Jr., transfer tax assistant, district attorney, petitioner; Percy S. Lansdoiwne, for comptroller; Jacob Stern, for administrators; Adolph. Eebadow, for Catherine Busch, who also appears in person.
   Marcus, S.

This proceeding arises upon the return of an order granted upon the application of the district attorney of Erie county, to show cause why George A. Winters, William Ahl and Louis Stern, administrators of the above estate, .should not pay the transfer-tax heretofore fixed at the sum of $566.24, together with interest thereon, and the costs of this proceeding.

Upon the return day, the said Louis Stern and George A. Winters appear, as well as one Catherine Busch.

On the 6th of August, 1895-, an appraiser was appointed to appraise and fix the fair market value, of the property of which the deceased died seized and- possessed, subject to taxation under and pursuant -to; chapter. 399 of. the Laws; of 1892, and of the laws amendatory thereof and supplemental thereto* ■

The order required that the appraiser give notice to all persons known to have a claim, or interest in said property, and to tbe county treasurer of the county of Erie, of the time and place where he would appraise and fix the fair market value of the property. On the 29th day of October, 1895, the appraiser returned and filed his proceedings in which he reported the nfet value of the personal estate at $11,624.05, and that “ George 'Winters, the husband of the deceased, takes all the personal property, because he administered the estate. The nephew William Ahl takes all the real estate, no evidence being offered that issue was born alive of the marriage of Winifred Winters and George Winters.”

This report on said 28th of October, 1895, was in all things confirmed by the surrogate, as of course.

. The report of the transfer tax appraiser shows that the notices were directed to the following-named persons, known to have a claim or interest in the property to be appraised, viz.,: George Winters, William Ahl, Louis Stern, the administrators, Charles D. Stickney, attorney for the comptroller of the State of New York, and to Daniel J. Kenefick, district attorney of Erie county.

On the 28th day of November, 1895, a petition was filed by the administrators, Louis Stern, George A. Winters and William Ahl, praying for proceedings in this court to enable them, as such -administrators, to render an account and have a decree made and entered, judicially settling and .allowing the same, and that all persons be cited to attend such settlement, and that all necessary process be had and taken as the law might require, the same petition alleging that George Winters (without specifying any relationship) and one Catherine Busch were the only parties interested. The petition contained the further statement that Catherine Busch “had filed with the Surrogate’s Court a petition in which she prays for the issuing of a citation to her upon the judicial settlement of said estate upon the ground that she is the descendant of said Winifred Winters; •deceased.” The said Catherine Busch Was thereupon made á party to the proceedings, and filed abjections thereto, and the same were thereupon, adjourned from time to time, and on the 28th day of May, 1896', a- determination of the issues resulted •.in establishing that said Winifred Winters died.leaving, the said George A. Winters, widower, and Catherine Busch, a daughter, her surviving, being her only heirs-a.t-law.

Mrs. Busch appears upon this proceeding and insists that the determination resulting in the fixing of this tax in the amount before mentioned .can in no way be binding on her since n.o notice of tire same was ever mailed to or received by her, the district attorney contending that this proceeding is strictly within the act; that if any person felt aggrieved or dissatisfied with the appraisement, assessment and determination of the tax, an appeal might have been filed within sixty days from the fixing, assessing and determination of the tax by the surrogate, upon filing the necessary notice of appeal; that having failed so to do they.,'are in all things barred, and further insisting that no claim is made against Mrs. Busch, she not being named, nor is any order ashed directing her to pay the same, or any part of said tax.

Upon the oral argument the district .attorney insists that this tax .as assessed must be paid, and that if any erroneous or illegal tax be shown, an application may be made to the comptroller of this State, and upon satisfactory proof presented to him of the facts, he will require tbe .amount of such erroneous or illegal payment to be refunded to the administrator who has paid in such tax in error, from the treasury, providing that tbe application for such refunding shall be made within five years from tbe payment thereof, as directed by section 225 of tbe New York Tax Law.

I am satisfied that the position of the district attorney upon the argument is incorrect. It would be manifestly unjust to put the burden upon this estate of paying to the county treasurer a sum of money, known to be erroneous, upon the theory tha-t a remedy exists whereby tbe matter may be nighted.

The further claim that Mrs. Busch is in no manner interested, for the reason that she has received the full amount coming to her from this estate, is also without force, since the tax remains a lien upon the property transferred until paid, and the person to whom the property is so transí erred, as well as the administrator, is personally liable for such tax until its payment. Mrs. Busch is, therefore, in the event of the failure of the administrator to pay this tax, personally liable for the same, and a lien still exists upon the property received by her under the decree of distribution,• and she is; therefore; a-person" inter--ested, to a very material extent.

I am of .the. opinion that these proceedings are fatally'defective from the fact, which is conceded, that Mrs. Busch never received a notice of the proceedings against her, and of the hearing, or an opportunity to be heard in reference to the value of the property, and the .amount of tax which was to be imposed.

This question was broadly discussed in the Matter of McPherson, 104 N. Y. 306, in which it was determined that, “ Ho must have some kind of notice of the proceeding against him, and an opportunity to be heard in reference to the value of his property, and the amount of tax which is thus to be imposed. Unless he has these, his constitutional right, to due process of law, has been evaded.” At page. 323 of the same case it is said, So, too, in this case, after the tax has been imposed, no person can be compelled to pay it until a citation has been regularly served upon him, and he has had ample opportunity to be heard. Upon the return of the citation, it is not specified in the section what cause c:an be shown against the payment of the tax, but it is dear, that the person thus cited may allege any reason whatever which shows that he ought not to pay it. He may answer that he has not had an opportunity to be heard upon the appraisal, .and that, therefore, the tax as to him is void.”

While it is true that no tax is sought to be collected from Mrs. Busch, I am nevertheless convinced that a condition- of affairs may arise in which she would be personally liable and could.be compelled to pay the tax, as a person who' bas received the property transferred.”

;I am further satisfied that this court under all the circumstances of the case,' and with the knowledge of the decree made upon the settlement, ought to set this tax aside, and' order another appraisal, upon the ground that the proper notices as required by section 231 of the act before mentioned were npt mailed, to all persons known to have a claim or interest in the property to' be appraised, — therefore, the determination of the appraiser and the coonfirmation of the same by the surrogate can in no way be binding upon Mrs. Busch.

,In the Matter of McPherson, before cited, it further held that when the section provides that he (the surrogate)' shall designate by order to whom the notice is to be given, it is necessarily implied that he shall designate all the persons entitled to notice. If he should omit to do so, it would be an error, on account of which every tax imposed upon the person not notified, or heard, would be invalid, as having been imposed without jurisdiction.

An order may, therefore, be entered, for the reasons herein stated, setting aside the report of the transfer tax appraiser, as confirmed by the surrogate, and allowing an application to be made for the appointment of a competent person as appraiser, to fix the fair market value, at the time of the transfer thereof, of the. property of 'the deceased. ■, .

Decreed accordingly.  