
    In the Matter of a Proceeding to subject the estate of Mary Hacket, Deceased, to the Transfer Tax.
    
      (Surrogate's Court, Rockland County,
    
    
      Filed October, 1895.)
    
    1. Transfer tax—Assessment.
    The fact that the administratrix, as next of kin, has received the whole amount adjudged to her under the decree upon the final settlement and paid it out on her own account prior to the assessment of the tax, furnishes no legal excuse for its nonpayment.
    2. Same—Objection.
    Where the administratrix was given full opportunity before the appraiser to have deducted from the bulk of the estate the debts and proper charges, it is too late, upon a proceeding to compel the payment of the tax, to make the claim that the estate, liable to the payment of the tax, was less than the sum upon which the assessment was laid.
    3. Same.
    In such case, where the order fixing the tax is served upon her, she is, by failing to take advantage of her right of appeal from the determination, barred from raising any question as to the correctness of the amount assessed.
    
      Proceeding to subject an estate to the transfer tax.
    
      Frank Oomesky, for administratrix.
   Tompkins, S.

This is a motion made by the district attorney to compel payment of the transfer tax heretofore assessed herein. Mary Hacket left but one next of kin, to wit, Elizabeth Hacket, the administratrix. On the 12th day of June, 1893, the final account of the administratrix was settled, by which the sum of $13,-465.37 was found in her hands, which amount, by the decree, the administratrix was directed to retain as the only next of kin of the deceased. No proceedings were ever taken by the administratrix to have the" transfer tax determined, and, subsequent to the said accounting, an appraiser was appointed by the surrogate, and subsequently an order made fixing the amount of the tax to which the said estate is liable at the sum of $134.65. This order was made on the 11th day of June, 1894. A motion was immediately thereafter served upon the administratrix of the making and filing •of the order assessing the tax, and the amonnt thereof. No appeal has ever been taken from that determination, and no proceedings have been taken by the administratrix, and the tax has not been paid. In answer to this motion, the administratrix alleges that the whole amount of $13,465.37, received by her under the decree, had been paid out by her on her own account prior to the assessing of the tax. This is no legal excuse for the nonpayment of the tax. The law makes it the duty of the representative to have the tax assessed and paid, and an executor or administrator is personally liable for the tax until its Daym'ent. The tax- is further declared to be a lien upon the property transferred until paid. The statute is positive and mandatory, and the surrogate has no discretion in the matter.

The further claim is made by the administratrix that in making her - account she did not credit herself with physician’s charges, undertaker’s bill, cemetery charges, and other charges, and that she waived the commissions to which she was entitled by law, and that by reason thereof the balance found'by the decree to be in her hands was more than the.amount of the estate which was liable to the tax, and the claim is made that the estate which was liable to payment of the tax did not exceed the sum of $6,750. It is too late now to make this claim, and there is no way under the statute by which I can permit the matter to be opened, and proof taken to correct the mistake. The administratrix had full oppor: tunity before the appraiser to state the facts now alleged in her affidavit, and there was given a full opportunity to have deducted from the bulk of the estate the debts and proper charges.

Again, the order fixing the tax was served upon her, and by it she was appraised of the amount of the tax, and the statute" gave her sixty days within which to appeal from the determination. By failing to take advantage of her right of appeal, she is barred from raising any question now as to the correctness of the amount assessed. It is a well-established rule that the time fixed by the statute within which an appeal may be taken cannot be extended or enlarged by the court.

Let an order be presented requiring payment - of the tax and accumulated interest within ten days, with $10 costs of this-motian.

Ordered accordingly.  