
    In the Matter of the Estate of Susan F. Frowe, Dec’d.
    
      (Surrogate’s Court, Kings County,
    
    
      Filed July, 1888.)
    
    1. Collateral inheritance tax—Proceedings eor assessment of—Duty op executor to initiate—Laws op 1887 chap. 718.
    It is primarily the duty of the executor to apply for an appraisement of property subject to taxation under the collateral inheritance tax law so that he may ascertain and pay the taxes. The power given to the surrogate, of his own motion, to cause an appraisement to be made fixing the tax, was not intended to relieve the personal representatives from their duty in the matter.
    3. Same—When proceedings can be commenced by district attorney.
    No proceeding c m be instituted to enforce the payment of the tax due under the collateral inheritance tax law within eighteen months from the death of the decedent.
    •$. Same—Citation to show cause—Costs.
    A citation to show cause why the collateral inheritance tax should not he ascertained, should not he issued until after the refusal or neglect of the persons interested in and liable to said tax to pay the same. Costs may not be allowed against such persons until after such refusal and neglect.
    Application for costs of proceedings on assessment of collateral inheritance tax.
    
      James W. Bidgway, district attorney, for app’lt; Jackson & Burr, for Jennie Frazer and another, executrices, opposed.
   Lott, S.

The testator died November 27, 1886, leaving personal estate subject to the tax imposed by chapter 483, Laws of 1885. By the will of decedent, an estate for life in all the property of the testatrix was bequeathed to Elizabeth F. Frazer, with remainder to certain legatees. On April 17, 1888, the tax remained unpaid, and, on the application of the district attorney of Kings county, a citation was issued, requiring the personal representatives of the decedent to show cause why the value of the property subject to said tax, should not be fixed and ascertained, and to show cause why said tax should not be paid.

It is claimed, in opposition to that application, that “no order was made, assessing the estate for the purpose of taxation, as required in the case of an outstanding life estate, until May 17, 1888. On May 23,1888, and within eighteen months after the death of the testatrix, the tax was paid. Prior to that, as has been stated, a citation had been issued on the application of the district attorney, and the service thereof made; and the sole question in the case now is—Is the estate liable for the costs in this matter ? Or, in other words, whether these proceedings were prematurely taken.

It is claimed, for the personal representatives of the decedent, that, until the surrogate, upon the report of the appraiser, has assessed and determined the value of the estate for the purpose of taxation, pursuant to section 13 of' chapter 713, Laws 1887, the tax: is not due and payable; and, the appraisement not having been made until after-these proceedings were instituted, no default had been made. The answer to this is that it is primarily the duty of the executor to apply for such appraisement, so that he may ascertain and pay the- tax. The power given to the-surrogate, of his own motion to cause appraisement to be-made and to fix the tax, was not intended to relieve the-personal representatives from their duty in the matter.

I think that section 4 of the act of 1887, read with its other provisions, indicates the intention to be, that, while-the tax is due and payable from the death of the decedent for some purposes—among others, that proceedings may be-had to appraise and ascertain the value of the estate subject, to the tax, and the amount of the tax, and that interest may be charged from the death of decedent in case the tax is-not paid within eighteen months thereafter, yet as the section referred to, provides that, if the tax is paid within eighteen months, no interest shall be charged and collected thereon, it would seem that no proceedings can be instituted to.enforce the payment of the tax within the eighteen-months. See the Matter of the Estate of Mrs. Astor 20 Abb. N. C., 405, 415.

It was intended, I believe, to enable the representatives-of the decedent, under many contingencies which may arise in the settlement of the estate, to ascertain the amount of the tax, and for that purpose time' may be necessary, to-determine the indebtedness of the decedent, and the like.

It is claimed by the district attorney that the citation in this matter is to show cause “why the tax should not be-ascertained,” as well as why it should not be paid. That is so;, but I do not think costs may be awarded except “ after the refusal or neglect of the persons interested in the property liable to said tax to pay the same.” Laws 1887, chap. 713, § 17.

For the reasons .1 have stated, this matter is dismissed without costs to either party. The question appears to be-new. No authority in point has been cited by either party. I think there was probable cause for citation and taking this proceeding, and will give a certificate to that effect-upon request. See Laws 1887, chap. 713, § 19.

Matter dismissed.  