
    McMahon v. Sullivan.
    N. Y. Supreme Court, First District, Special Term at Chambers ;
    
    
      April, 1884.
    Taxes ; proceedings for collection.—Executors, &o.
    Executors and administrators, before appropriating assets to the payment of legacies, must see, at their peril, that there is no tax upon the estate entitled to priority.
    Petition to enforce payment of tax.
   Lawrence, J.

This proceeding is brought for the purpose of collecting the taxes imposed for the year 1882. It appears by the affidavit of Mr. Crawford that, in the accounting of the respondents, filed in the office of the surrogate, March 10, 1883, said respondents charged themselves with the balance on hand of the estate of Eliza Moore, amounting to $4,284.73, and that the final decree made by the surrogate directed the sum of $3,279.36 to be paid to the residuary legatee. This decree was filed December 22, 1883. The affidavit of Mr. Sullivan does not show when the personal estate was paid over to the residuary legatee. It alleges that there were no assets of the estate in the hands of the executors, and that they have no funds applicable to the payment of the tax imposed upon the personal property in the year 1883. It does not allege, however, that no such assets were in the hands of the executors at the time of the imposition of the tax, nor is there any pretense that there was any irregularity in the imposition of the tax, or that the notice required by law to be given of the assessment was not duly given and published.

The allegation that the charitable institutions which were beneficiaries under the will, made frequent demands upon the executors for the payment of their bequests, shortly after the admission of the will to probate in the year 1881, and that such requests were based upon the grounds of urgent need of the funds, and that such requestá, being complied with, the executors, when notified of the imposition of the taxes in 1882, had no moneys in their hands applicable to the payment of such taxes, is no excuse for the non-payment of the tax. It was the duty of the executors, before appropriating any portion of the estate to charitable purposes, to see that the debts of the estate, both to individuals and to the State, were provided for, and if they have omitted to do so, the court is without power to afford them relief (see McMahon v. Brown, MSS.) The motion of. the receiver of taxes must be granted. 
      
       In McMahon v. Brown (Mar. 17, 1884), Lawrence, J.,. said: “ The petition of the receiver of taxes must be granted. The respondent cannot now dispute the validity of the tax (Smyth v. International Life Ins. Co., 35 How. Pr. 126). He does not deny positively that he received notice of the assessment of the estate. He only goes so far in his affidavit as to state that he has no recollection of having ever received such a notice. This is not enough. If he is now without sufficient funds to meet the tax he must be held to have wrongfully distributed the estate before making the proper inquiries as to its liabilities.”
     