
    In the Matter of the Estate of Elizabeth Fischer, Deceased.
    
    Surrogate’s Court, New York County,
    January 12, 1928.
    Taxation — transfer tax — application for order vacating pro forma order — money paid to executrix from teachers’ retirement fund is exempt — petitioner had right to move to vacate order, under Surrogate’s Court Act, § 20.
    Money paid to the executrix of an estate from the teachers’ retirement fund is exempt from a transfer tax.
    The executrix has the right, under section 20 of the Surrogate’s Court Act, to move to vacate the pro forma order fixing a transfer tax, and is not compelled to appeal from that order.
    
      Application for order vacating proforma order fixing transfer tax-
    
      Baker & Obermeier, for the executrix.
    
      Charles A. Curtin [Francis H. Warland of counsel], for the State Tax Commission.
    
      
       Affd., 223 App. Div, 887,
    
   O’Brien, S.

This is an application for an order vacating the pro forma order fixing tax heretofore entered, and declaring the estate exempt from transfer tax, on the ground that there has been included among the taxable assets the sum of $8,341.38, the proceeds paid to the executrix of the estate from the teachers’ retirement fund. The application is granted. The transfer of the said amount so received is exempt from tax. (Matter of Morrison, 130 Misc. 438.) The contention of the State that the remedy of the executrix was by appeal, and not by motion, is without merit. Pursuant to section 20 of the Surrogate’s Court Act, the court may modify its order fixing tax where jurisdiction has been mistakenly assumed, and this even though the time to appeal has expired. (Matter of Putnam, 220 App. Div. 34; Matter of Scrimgeour, 80 id. 388; affd., 175 N. Y. 507; Matter of Coogan, 27 Misc. 563; affd., sub nom. People ex rel. Coogan v. Morgan, 45 App. Div. 628; affd., 162 N. Y. 613.) Submit order on notice vacating the taxing order and declaring the estate exempt from transfer tax.  