
    In re ULLMAN'S ESTATE.
    (Supreme Court, General Term, First Department.
    January 13, 1893.)
    Wills—Construction—Jurisdiction of Surrogate—Collateral Inheritance Tax. The surrogate has no power, in proceedings to fix the collateral inheritance tax, to declare void of his own motion the. provisions of a will. In re Verplanck, 91 N. Y. 439, and Purdy v. Hayt, 98 N. Y. 446, distinguished.
    Appeal from surrogate’s court, New York county.
    Proceedings before the surrogate to fix the collateral inheritance tax in the estate of Amelia G. Ullman, deceased. From an order declaring void certain provisions of the will, and fixing the tax accordingly, William B. Hooper, Joseph Hooper, and Samuel Hooper, three of the heirs at law of deceased, appeal. Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and BARRETT, JJ.
    McCarthy & Berier, (De Lagnel Berier, of counsel,) for appellants.
    Horace Russell and Jabish Holmes, Jr., for respondent executors and others.
    Edgar J. Levey, for respondent Theodore W. Myers, comptroller.
   VAN BRUNT, P. J.

The sole question involved upon this appeal is whether, in proceedings to fix the collateral inheritance tax, the surrogate has power upon his own motion- to declare void the provisions of a will. It is urged upon the part of the respondents that such power exists as an incident to his general jurisdiction over the subject of fixing such tax; that the act gives the surrogate in express terms jurisdiction to hear and determine all questions in relation to the tax; that he acts judicially, and therefore has, in addition to the power expressly given, all incidental powers which may be necessary to enable him to fix the tax, and therefore that the power conferred does include the right to construe a will even of real estate, it being utterly impossible to fix the tax on the estate without so doing. If this contention is true, it is the most remarkable instance of the conferring of power by implication that our statute book affords. The basis of the argument seems to rest upon the fact of the inconvenience which would arise in the fixing of this tax did not that power exist in the surrogate. We do not think that merely because of inconvenience in the administration of an unwieldy, incongruous, ill-considered and blindly drawn statute, such implications should be indulged in. It certainly cannot be claimed that in this proceeding before the surrogate his adjudication upon the validity of the provisions of a will affecting real estate shall be final and conclusive. If it is not, however, cases would continually arise in which, after the surrogate had assessed the tax, holding the will to be valid or invalid, as the case might be, upon a bill filéd a contrary result might be arrived at, and the real beneficiaries mulcted in a tax without the slightest authority in law. It certainly cannot be that the determination of the surrogate that the provisions of a will are valid, in these informal proceedings for the purpose of assessing this tax, makes the question as to the validity of the provisions of that will res adjudieata, for the reason that in proceedings initiated in the manner in which this proceeding was initiated the surrogate has no power to determine that legacies are free from taxation. In re Wolfe, 21 N. Y. Supp. 515, (decided December 16, 1892.) And besides, if this power resides in the surrogate of his own motion to declare provisions in a will invalid for the purpose of fixing the tax under these acts, then we cannot see why he may not institute an investigation for the purpose of proving that the execution of the will was obtained by undue influence or fraud, or that the testator had not testamentary capacity, and that, therefore, there was in reality no will,—powers which are equally necessary for the purpose of levying the tax as the power to construe and destroy.

There is another reason why an adjudication by the surrogate upon this subject cannot be final, and that is, because at any time within one year after probate of a will of personal property any person interested in the estate of the decedent may institute proceedings for the revocation of such probate; and in respect to real property this right, in a different form, exists for a much longer period of time. Hence, after the surrogate has assessed the tax, and the executors have paid it, subsequent proceedings may develop the fact that such tax as assessed was entirely unauthorized. The ordinary rule governing the interpretation and effect of wills is that their provisions shall be carried out by the persons intrusted therewith, until they are attacked by some person who is interested in the property of the decedent which is affected thereby. A departure from this rule, and the giving to the surrogate, in these proceedings, power to construe wills and determine upon their validity or invalidity, would necessarily lead to inevitable confusion and uncertainty, and the results would be far more detrimental than those-which can possibly arise from' the refusal to confer such authority by judicial legislation. If the law in question is defective in this particular,—as it manifestly is in very many others,—it is for the legislature, not the court, to supply the omission.'

It has been claimed that the cases of In re Verplanck, 91 N. Y. 439, and Purdy v. Hayt, 92 N. Y. 446, are authority for the contention of the respondents upon this appeal, but it is apparent upon an examination of those casesthat they have no relevancy to the question at bar. All that the court decided in those cases was that upon the accounting-of executors the surrogate might determine whether the personal property, or that which had become personal property, had been properly distributed, or to whom it should be paid. It is true that the construction of the will might be involved in this determination, but all that that construction decided was the propriety of disbursements made in. the administration of the estate, or to whom the fund in hand should be-distributed, which is in harmony with the power expressly conferred by section 2624 of the Code upon the surrogate to construe the disposition, of personal property in a will. But in the case at bar the authority of ■the surrogate to construe the disposition in a will of real estate is-claimed,- not by direct legislation, but simply by implication,-—an. authority wdiich has never yet been conferred upon any such officer by any legislation. The order should be reversed, with costs. All concur..  