
    Matter of the Estate of Sidney Smith, Deceased.
    (Surrogate’s Court—Madison County,
    October, 1895.)
    Where the appraiser made use of and exhausted every remedy provided by the statute in force at the time the appraisal was made, his acts and conclusions are binding upon the state, unless he committed errors for which an appeal might have been taken. 1 ,
    
    An. error in refusing to appraise an asset of the estate is not a ground for setting aside the appraisal, but the remedy is by appeal.
    A judgment in favor of the decedent against an heir or legatee should be appraised, as the executor or administrator has a lien or right of detention upon the distributive share of the debtor to the extent of his indebtedness, which could be enforced upon final settlement by deducting the judgment from the amount of such share.
    Proceedings to set aside an appraisal under the Collateral Inheritance Tax Law of 1885.
    
      H. M. Aylesworth, 8. D. White, H. B. Goman and JE. R. Oleott, for comptroller.
    
      Man & Man and 8. M. Lmdsley, for estate.
   Kennedy, S.

This is a proceeding to set aside the appraisal and assessment of the collateral inheritance tax upon the estate of Sidney Smith, deceased, upon the ground of alleged fraud and fraudulent concealment of facts by the administrator at the time of the appraisal of the estate in 1888.

"We must deny the application for the following reasons: Excluding the Adams judgment, to which we hereafter1 refer, the state claims that some or all of the committees wlm have had charge of Sidney Smith’s estate, during his lunacy from 1848 to his death in 1886, have been guilty of great irregularities in the management of his property, and that, at the time of the appraisal, said committees were indebted to-his estate in a large sum of money which ought to have been taxed. Without examining the evidence to ascertain whether this claim is true or not we shall hold as follows:

At the time the assessment was made the statute did not authorize the appraiser to subpoena and compel the attendance of witnesses for the purpose. of ascertaining under oath the condition and amount of the estate. He was without power to make any investigation, save by personal observation and inquiry. In this case the appraiser did all that he was authorized or empowered to do under the 1 law as it then was in determining the amount of property. liable to taxation. Having made use of and exhausted every remedy then provided for the appraisal of this estate, the state is bound by his acts and conclusions, unless he committed errors for which an appeal might have been taken.

The Collateral Inheritance Tax Act of 1885 imposed no duty or obligation upon the administrator of this estate to voluntarily aid the appraiser in any manner whatever in making the appraisal or to make any statement, disclosure or proof as to the the conditicn or amount of the estate he represented, any more than a private citizen is ‘under obligation to inform the tax assessor of the amount and condition of his property for the purpose of an assessment. We, therefore, hold that the . administrator was. not guilty of any fraudulent acts of commission or omission in connection with the appraisal of this estate. • 1

Even if the appraiser had been informed that there were . irregularities in the management of the lunatic’s estate from 1848 to 1886, by reason of which the several trustees were indebted to said estate, he would have been justified, and we think it would have been his duty, to hold that the claims arising therefrom had no fair market value, because he had no power to investigate the matter, and even if he had possessed the power, because of the long, expensive and uncertain litigation that would have been necessary to ascertain the fact.

In view of the statute as it was at the time of the appraisal, we think this estate, upon this branch of the case, has been legally submitted to the appraiser, and the assessment for this reason cannot be set aside, except for errors for which an appeal is the only proper remedy.

Second. It is claimed by the state that the balance due upon the Adams judgment, amounting to about $60,000, should have been appraised. We so hold, but the remedy for the error was by appeal in due time from the assessment, and not by proceedings to set the same aside. The administrator had a lien and right of detention upon the distributive share of Adams in said estate to the amounf of his indebtedness to it, which could have been enforced upon fhe judicial settlement of the estate by simply deducting the same from the amount to which he was entitled, and it would have been the duty of the surrogate to make the decree accordingly. It is an undisputed fact that the Adams share of the estate was in excess of the amount due upon the judgment, and also that the administrator had sufficient funds in his hands to pay it. Under such circumstances the opinions of Smith or Underhill as to the market value or collectibility of this claim are of no consequence, for upon the facts above stated the law had settled the question of its value by declaring - that the administrator had a lien or right of detention upon sufficient assets then in his hands to pay the same in full, and provided a remedy for its collection. Even if the Adams claim had not been put into judgment, the Statute of Limitations would not have been a bar to the recovery of the debt in the manner above stated. Rogers v. Murdock, 45 Hun, 30. The appraiser may have been misled ,by the statements of. Smith and Underhill because he was not aware of the law applicable to this branch of the case. His conclusion as to the value of this Adams claim was erroneous, .but the error was one that should have been corrected by appeal from the assessment.

Thwd. This Surrogate’s Court has heretofore held, by its _ order of March 16, 1889, that the procéeds of Alabama lands were exempt from taxation, and no reason appears why the ruling upon that question should be changed.

An order will, therefore be entered dismissing these proceedings, with $250 costs, to be paid by the comptroller of the state of Hew York.

Ordered accordingly.  