
    In the Matter of the Transfer Tax upon the Estate of George W. Kidd, Deceased. William C. Wilson, Acting Comptroller of the State of New York, Appellant; Grace Georgette Dickinson and Others, Respondents.
    First Department,
    November 5, 1906.
    Tax — compromise of transfer tax under section 330a of the Tax Law — same not binding on successful claimant against the estate — power of the surrogate to vacate order appointing appraiser—Comptroller not necessary party to action by claimant against estate.
    When it has been adjudicated that a claimant is entitled to the whole estate of a testator under an ante-nuptial agreement made with, claimant’s mother, and that, therefore, the will itself was insufficient to pass the "estate, a prior compromise. made under section 230a of the Tax Law, determining the amount of the transfer tax made by the executors of the will and the State Comptroller is void and not binding upon the claimant, for her interests were not represented by the executors when making the compromise.
    As the property passed to the claimant by virtue of such ante-nuptial agreement made prior to the Transfer Tax Act, the transfer is not subject to a tax.
    The claimant is not estopped by such compromise by the executor, although she , was also a devisee or legatee under the will.
    As the surrogate, under the statute, has power to determine the taxable property, it follows that he has the jurisdiction to determine that the property passing under such ante-nuptial agreement is not taxable and to vacate the order appointing an assessor, and may act in the premises on the application of such claimant, who is an interested party.
    -The Comptroller is not a necessary party tó an action by a claimant against an estate for the specific performance of an ante-nuptial agreement made by the testator; at least, it seems, when the action is prosecuted in good faith.
    Appeal, by William 0." Wilson, Acting Comptroller of the State of New York, from an order entered in the Surrogate’s Court of the county of New York, adjudging the estate of George W. Kidd, deceased, and the transfer thereof to be exempt from taxation under the act in relation to taxable transfers of property.
    
      Jabish Holmes, Jr. [Robert C. Cumming with him on the brief], for the appellant.
    
      Henry Hirschberg [Thomas B. Casey and Joseph F. McCloy with him on the brief], for the petitioners, respondents.
   Laughlin, J.

The order was" made on the 2d day of July, 1906, on the joint application of ¿he executors of said .estate and of Grace Georgette Dickinson.' The application was opposed by the appellant upon the ground .that the executor and Comptroller of the State on the 2oth day of March, 1905,. duly compromised the tax payable by the estate, pursuant to the. provisions of section 230a of the Tax Law, ■ added by chapter 173 of the Laws of 1901.

The decedent died on the 3d - day of December, 1901, leaving • personal property worth about $600,000 and real estate worth about $350,000, and debts aggregating less than$50,000. He left a will purporting to devise and bequeath all of his estate, and it was duly admitted to. probate as a will of both personal and real property ,on, the 5th day of April, 1903.. In July, 1903, the respondent Grace Georgette Dickinson commenced an action in the Supreme Court against the execqtor, the heirs and next of kin, the legatees and ' devisees of the decedent, for the specific performance of an ante-nuptial contract made by the decedent, her stepfather, with herni other, in and by which he agreed, in consideration for her mother’s marrying him on the 19th day of November, 1875, and advancing to him for use in his business the sum of $40,000, among other tilings, that he would adopt said Grace Georgette Dickinson and give her his «name and make her his heir, and in the event that lie ■ died Without issue of said marriage, which event in fact transpired, he would will, bequeath and devise to lief all of. his property. The issues in said' action were duly tried arid on the 16th day of May, 1905,-a decree was duly entered therein establishing the Validity of said ante-nuptial Contract and decreeing that the defendants specifically perform the same by assigning,‘transferring and delivering toiler any and all*property of the estate remaining in their hands and to account to her for any thereof received by them which for any reason they are unable to turn over to her. No appeal has been taken from the decree,, and. as the time to appeal therefrom liasexpired, it has become final and conclusive on all parties to the action. In the meantime, arid on the 16th day of January, 1904,: on the petition of the State Comptroller, an appraiser of the estate had been duly appointed. On the 25th day of March, 1905, and before the. appraiser made a report, the executor and Comptroller made an agreement purporting to be pursuant to the provisions of section 230a of the Tax Law (Laws of 1896, chap. 908), hdded by chapter 173 of the Laws of 1901, compromising the tax at $10,000 upon the theory that the entire estate, after paying debts and devising real estate of the value of $200,000 to his widow (rendering that part thereof exempt from taxation), was left in trust, and that it was impossible to ascertain the duration of the trusts or the'persons who would ultimately become entitled to the remainder or the amount of tax that should be paid thereon. Thereafter and on the 11th day of May, 1906, on the affidavit of the executor showing the compromise and the consent of the Comptroller, the Surrogate’s Court made an order vacating the order appointing the appraiser..

The. application to have the estate declared exempt from transfer tax was opposed upon the ground that the tax having been compromised under the statute, the Surrogate’s Court was without jurisdiction in the premises. The first answer to this objection suggested by the respondents is that the compromise agreement was void because it had not been previously decided by the court that the amount of the tax on the remainders could not be ascertained. As ■ already observed, the statute in force at the time the agreement compromising the'-taxes -was made and applicable thereto, was section 230a of the Tax Law (added by Laws of 1901, chap. ,173), and it provided as follows:

“ The county treasurer of any county in which the office of appraiser is not salaried, by and with the consent of the Comptroller of the State of Mew York, expressed in writing, and the State Comptroller in any. other county, by and with the' consent of the Attorney-General expressed in writing, is hereby empowered and authorized in a county in which they receive payments on account of transfer tax, to enter into .an agreement with the trustees of any estate therein situate, in which remainders or expectant estates have been of such a nature, or so disposed and circumstanced, that the taxes therein were held not presently payable, or where the interests of the legatees or devisees were not ascertainable under the provisions of chapter four hundred and eighty-three of the laws of eighteen hundred and eighty-five; chapter three hundred and ninety-nine of the laws of eighteen hundred and ninety-t.wo, .or chapter nine hundred and eight of the laws of eighteen hundred and ninety-six, and the several acts amendatory thereof and supplemental thereto; and to compound such taxes upon, such terms as. •may he deemed equitable and expedient.; and to grant discharge to said trustees upon the 'payment of the taxes provided for' in such composition; provided, however, that no such composition shall be conclusive in favor of said trustees as against the interests of such cestuis que trust as may possess either present rights of enjoyment, or fixed, absolute or indefeasible rights of future enjoyment, or qf such as would possess such rights in the event of the immediate termination of particular estates, unless they consent thereto, either personally, when competent, or by guardian or committee. Composition or settlement made or effected under the provisions of this, section shall be executed in triplicate, and one copy shall be filed in the office of the State Comptroller, one copy in the. office'of the surrogate of the county in which the tax was paid, and one copy to. be delivered to the executors, administrators or. trustees who shall be parties thereto.” ■ -

The objection suggested, and others which suggest themselves, namely, whether the statute authorizing compromises is not confined - to cases where the decedent died prior to the amendment of section 230 of the Tax Law enacted by chapter 76 of-the Laws of 1899, designed to require- the immediate payment of taxes upon property “ transferred in trust or otherwise,” where “ the rights, interest or estates of the transferees are dependent upon contingencies or conditions whereby they inay be wholly or in part created,' defeated, extended or abridged,” and in. other cases specified in that or subsequent amendments, and whether it would be applicable to this estate if it passed under the will of the decedent, and whether the compromise would .be binding on one claiming under the will, • need not be passed upon at present. . Here, it has been judicially determined that the estate upon .which the executor undertook fo compromise the tax did not pass under the" will at all, and, therefore,' the executor had no jurisdiction over it. The person decreed to be the owner of the property by virtue of the ante-nuptial agreement was not a party to the compromise agreement. The executor, so far as appears, did not assume to and was not authorized to rep-resent her. The fact that she, as a devisee or legatee under the will, was made a party to the appraisal proceeding which was subsequently discontinued, and thus may have had notice that' the compromise was made, does not estop her from now asserting her rights under the decree for a specific performance which she could not then have asserted as a valid objection to the appointment of an appraiser or to the discontinuance of the appraisal proceeding which, as has been seen, was based on the compromise agreement. It now clearly appears that the estate left by the decedent to pass under his will, or, in other words, not lawfully disposed of in his lifetime, was not such as in any view of the statute could confer jurisdiction upon the executor and Comptroller to compromise the tax. On the uncontroverted facts, there was no taxable transfer. The remaining question is, whether the Surrogate’s Court was authorized to make the order, assuming, as we hold, that the compromise agreement was no obstacle.

That question must be answered in the affirmative. Section 230 of the Tax Law (as amd. by Laws.of 1905, chap. 368) provides that the surrogate shall, either on his own motion or on the application of “ any interested person, including the State Comptroller,” direct a salaried appraiser appointed pursuant to the provisions of section 229 thereof, as thus amended, or, in dounties where there is no salaried appraiser, the county treasurer “to fix the fair market value of property of persons whose estates shall be subject to the payment of any tax imposed by this article. ” Section 228 of the Tax Law (as amd. by Laws of 1905, chap. 368) provides, among other things, as follows : “ The Surrogate’s Court * * * shall have jurisdiction to hear and determine all questions arising under the provisions of this article,* and tó do any act in relation thereto authorized by law to be done by a surrogate in other matters or proceedings coming within his jurisdiction.” It thus appears that the Surrogate’s Court is given express authority to determine the taxability of property under the Transfer Tax Law, so called. It necessarily follows that it had jurisdiction, if properly invoked, to determine whether this property which came into the hands of the executor, but to which said Grace Georgette Dickinson was entitled under the ante-nuptial contract made by the decedent with her mother, was taxable.. Both she and the executor were.interested parties who had a right to invoke the jurisdiction of the court on notice to the State Comptroller, which was given. The facts being uncontroverted and not capable of successful challenge, there was no necessity of appointing an appraiser. The beneficiary acquired vested rights under the ante-nuptial contract, which antedated the Collateral Inheritance and Transfer Tax Laws, so called, and the property to which she was entitled thereunder was not subject to the transfer tax. (Matter of Pell, 171 N. Y. 48 ; Matter of Craig, 97 App. Div. 289; affd., 181 N. Y. 551; Matter of Baker, 83 App. Div. 530; affd., 178 N. Y. 575; Matter of Miller, 77 App. Div. 473.)

The Comptroller was not a necessary party to the action for specific performance of the ante-nuptial contract. Section 447 of the Code of Civil Procedure should not receive a construction which would authorize the Comptroller to obstruct such, a litigation commenced and prosecuted in good faith. The right of the People of the State to ta.x a transfer to the heirs, devisees, legatees or next of kin depends upon.whether or not there was a transfer to them. I am of opinion that, where in an action against them and the executor it has been decided by a court of competent jurisdiction that there was no transfer, such adjudication, in the absence of fraud or tiollusion, should be deemed binding in a prosecution to determine whether or not there has been a transfer of the property which subjects it to taxation. The direct effect of the decision ivas an adjudication that there was no transfer under the will, and the indirect effect followed that no interest having been transferred, nothing passed to which the tax could attach. The interests of the People only attached after the interests of the claimant under the will were conceded or established. It would seem, therefore, at least in the absence of fraud or collusion that the decision between the real parties in interest which adjudges that nothing passed under the will would preclude the State from imposing a tax which could only be assessed against an interest transferred by the will. However, in the case at bar no attempt was made to impeach the decree for specific performance and, therefore, it is not necessary to decide to what extent, if any, it would be open to attack. before the Surrogate’s Court. It was taken and followed as ¡prima facie evidonee of the right of Grace Georgette Dickinson to the property, and in this I deem it quite clear that no error was committed.

It follows that the order should be affirmed, with costs.

O’Brien, B. J., and Scott, J., concurred ; Ingraham and Clarke, JJ., dissented.

Order affirmed, with costs. 
      
      Tax Law, art. 10, as amd.— [Rep.
     