
    In the Matter of the Appraisal under the Transfer Tax Acts of the Property of Benjamin D. Silliman, Deceased; Edward Mitchell and Grosvenor S. Hubbard, Executors of and Trustees under the Last Will and Testament of Benjamin D. Silliman, Deceased, Appellants; Nathan L. Miller, Comptroller of the State of New York, Respondent.
    
      Transfer tax—modification of a decree under which the tax has been paid, by deducting the commissions of the executors as trustees, also the executors' commissions on the proceeds of real estate sold subsequently thereto.
    
    In assessing the transfer tax upon a testator’s estate the executors’ commissions as trustees should be deducted. If they are not deducted the Surrogate’s Court may, after the assessment of the tax and the payment thereof, modify its decree by excluding such commissions from consideration. .
    It may also modify such decree by excluding from consideration an increase of §1,500 in the amount of the executors’ commissions, resulting from the fact that six months after the payment of the tax the executors, pursuant to a power contained in the will, converted a portion of the testator’s real estate into personalty.
    Appeal by Edward Mitchell and Grosvenor S. Hubbard, as executors, etc., of Benjamin D. Silliman, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 10th day of June, 1902, denying an application to modify a decree theretofore entered in the proceeding fixing the transfer tax upon the estate of the said testator.
    
      William Mitchell, for the appellants.
    
      John H. Kemble, for the respondent.
   Willard Bartlett, J.:

This was an application to modify a decree of the Surrogate’s Court of Kings county fixing the transfer tax upon the estate of Benjamin D. Silliman, deceased. In 1901 the executors and trustees under the will paid to the Comptroller of the State of New York $51,456.71, being the amount of the transfer tax as previously assessed under a decree and modified decree of the Surrogate’s Court. In the present proceeding the executors and trustees sought a modification of the previous decrees on two grounds: (1) That subsequently to the payment of the tax the personal property of the estate had been increased by the conversion of certain real property which had been sold under a power of sale contained in the will, the effect of such sale being to entitle the executors to an increase of $1,500 in the amount of their commissions, and (2) that in assessing the amount of the transfer tax no deduction had ever been made for the commissions upon the real and personal property of the deceased to which the appellants were entitled as trustees under the will, the tax on such commissions amounting to the sum of $1,072.74.

There was no dispute as to the facts alleged by the appellants in support of their application; but the learned surrogate denied the motion, as we gather from his opinion, solely upon the ground that the only remedy of the appellants was by appeal under section 232 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1899, chap. 672). In support of this view he cited Matter of Crerar (56 App. Div. 479).

We think that case is readily distinguishable on the facts from the case at bar, and that the Surrogate’s Court possessed the power to make the modification which was sought in this proceeding. Since the payment of the transfer tax upon this estate the Court of Appeals has decided that the amount represented by the expense of administration never passes to the legatees or next of kin, and is, therefore, not subject to the transfer tax. (Matter of Gihon, 169 N. Y. 443.) In the opinion in the case cited, speaking of the commissions of trustees under a will, Judge Cullen, writing for the court, declared that “ the deduction of the trustees’ commissions is justified and required by section 227 of the Tax Law itself, which prescribes that any legacy or devise to trustees in excess of their commissions allowed by law shall be taxable, thus necessarily implying that legal commissions shall be exempt.” It would seem, therefore, that the previous assessment of the tax so far as it included such commissions was without jurisdiction, and that the Surrogate’s Court possessed power to modify its prior decree so as to exclude such commissions from consideration as any part of the sum upon which the tax was to. be assessed. (Matter of Coogan, 27 Misc. Rep. 563 ; affd. by the Appellate Division, sub nom. People ex rel. Coogan v. Morgan, 45 App. Div. 628, and by the Court of Appeals, 162 N. Y. 613. See, also, Morgan v. Cowie, 49 App. Div. 612.)

So far as the conversion of a portion of the testator’s real property into personal estate is concerned, it distinctly appears that such conversion took place over six months after the payment of the tax, so that the relief sought on that ground could not possibly have' been obtained by appeal.

The order refusing the desired modification should be reversed and the case remitted to the Surrogate’s Court for proceedings in accordance with this opinion.

Goodrich, P. J., Woodward and Hirsohberg, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and case remitted to the Surrogate’s Court for proceedings in accordance with the opinion of Bartlett, J.  