
    In the Matter of the Appraisal of the Property of William Hubbard, Deceased, Under the Act in Relation to Taxable Transfers of Property.
    (Surrogate’s Court, New York County,
    November, 1897.)
    Transfer tax — Jurisdiction of surrogate.
    Where the. executors of a nonresident decedent, who owned per- ■ sonal property in this state at the time of his death subject to transfer tax, present their accounts to the court at the domicile of the decedent, make distribution of his estate and obtain their discharge from such court, jurisdiction of the surrogate of the county in this state, where such personal property was situated at the time of the death of the owner, tb appoint an appraiser and fix the tax is not lost.
    Where the tax is imposed, and the statute providing for its imposition is in force, it is the duty of the executors of the nonresident decedent to pay the tax or request the imposition of the tax as the ease may be upon removing the property.
    Motion to dismiss proceeding on tke claim that the surrogate had been ousted of jurisdiction.
    Ritch, Woodford, Bovee & Wallace (William C. Wallace, of counsel), for motion by executors.
    
      Emmet R. Olcott, attorney and of counsel for comptroller.
   Fitzgerald, S.

This proceeding was instituted by the comptroller to assess and fix the transfer tax. Decedent died in June, 1895. The proceeding is, therefore, governed by chapter 399 of the Laws of 1892. He resided in the state of Connecticut, but left property in this state. The executors never took out letters in this jurisdiction. In July, 1896, the executors filed them accounts in Connecticut, which were approved, and the amount of inheritance tax due in that state was fixed and paid. In the following October a further account was filed, which resulted in a decree directing the distribution of the estate. The entire estate has, consequently, been distributed pursuant to the decree of a competent tribunal, and the executors have not now in their possession any property belonging to the estate. They now move to dismiss the proceeding as against themselves, urging lack of jurisdiction. In the Matter of Embury, 19 App. Div. 214-217; affd. 154 N. Y., the duty of foreign executors in the premises is stated as follows: They were- bound to take possession of it (the property) and make distribution according to the decree of the court having jurisdiction of the estate. Had a tax been imposed on the property,, or had a statute providing for ' its imposition been in force, it would have been their duty to have paid it or to have requested the imposition of the tax, as the case might be, before removing the property.” The claim, then, of the executors, briefly stated, is, that having violated the statute and failed to perform their duty, the court has been by that failure and violation -ousted of jurisdiction. It needs no argument to demonstrate the fallacy of such a plea. Besides, the order which will be entered on the termination of this proceeding will not in terms run against the executors. It will specify the names of the legatees taking taxable interests, the value of such interests respectively, and the tax. due upon the transfer thereof. Subsequent proceedings may be taken against the beneficiaries, or against the corporations in which the decedent held the stock, as well as against the personal representatives.

Motion denied.  