
    In the Matter of the Transfer Tax upon the Estate of Annie C. Morgan, Deceased. The Comptroller of the State of New York, Appellant; Matthew Morgan, Respondent.
    (Argued May 26, 1915;
    decided June 15, 1915.)
    
      Matter of Morgan, 164 App. Div. 854, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1914, which reversed an order of the New York County Surrogate’s Court denying a motion to modify a prior order assessing a transfer tax upon the estate of Annie 0. Morgan, deceased. The motion relates to three separate trusts or property interests. The surrogate denied the motion on the ground that with respect to two interests, concerning which the testatrix clearly attempted to exercise powers of appointment, the question as to whether those interests passed by virtue of the powers of appointment was presented to the tax appraiser for determination, and that the remedy of the appellant was to appeal from the order of the surrogate confirming the determination of the tax appraiser (Tax Law, § 232), and that the surrogate is now without power in the premises; and that with respect to the third interest the appellant was guilty of laches in failing to make the motion for about six years. The Appellate Division held that none of the remainders was taxable and that the tax appraiser and the surrogate were without jurisdiction in this proceeding to tax property that did not pass to the children of the testatrix by virtue of her will and that, therefore, the motion should not have been denied either on the ground that the appellant confessed jurisdiction by presenting the affidavit or upon the ground of laches.
    
      Schuyler C. Carlton, Alexander Otis and Lafayette B. Gleason for appellant.
    
      Herbert J. Bickford and George L. Kobbé for respondent.
   Order affirmed, with costs; no opinion.

Concur: Willard Bartlett, Oh. J., Hiscock, Collin, Cuddeback, Hogan, Cardozo and Seabury, JJ.  