
    Matter of the Transfer Tax on the Estate of William Scrimgeour, Deceased.
    (Surrogate’s 'Court, Kings County,
    October, 1902.)
    Transfer tax — Refunded when paid under a statute declared void after payment.
    After the Court of Appeals has declared unconstitutional a statute (L. 1899, chap. 76) imposing a transfer tax upon certain remainders and reversions, persons who paid that tax but did not appeal within the time fixed by law from the decree imposing it may move to vacate the decree -and may have their payments refunded, as the court of the surrogate has power to vacate its decree when void because rendered under a statute subsequently declared unconstitutional.
    Motion to vacate a decree assessing and fixing the transfer tax.
    
      William Murray, for petitioners.
    William O. Campbell, for State Comptroller.
   Church, S.

This is a motion to vacate a decree which fixed the transfer tax on the estate of William Scrimgeour, deceased, and directing the repayment of the money paid thereunder.

Were this tax to be levied at the present time, there can be no question but that it would be held" to be improper, as the Court of Appeals, in Matter of Pell, 171 N. Y. 48, has decided that this specific act (L. 1899, ch. 76), under which the assessment in question was made, was unconstitutional and void.

But the granting of this motion is resisted by the counsel for the State Comptroller on the contention that the persons interested in the estate, not having appealed within the time provided by the Transfer Tax Act, have waived their right to review this question, and cannot attack this decree by a collateral motion.

The general principle contended for by the State Comptroller is unquestionably correct, and is supported by the following decisions: Matter of Schemerhorn, 38 App. Div. 350; Estate of C. Godfrey Gunther, N. Y. L. J., July 12, 1902; Matter of von Post, 35 Misc. Rep. 367. And the principle was recognized by me in the Matter of the Estate of Benjamin B. Silliman, deceased (38 Misc. Rep. 226).

But in all of these cases the motion to set aside the decree was based upon the fact that, by reason of subsequent decisions of the Court of Appeals, the theory upon which the tax had been levied in the particular estate under consideration was incorrect, and if the decision of the Court of Appeals simply placed a different interpretation as to the scope and effect of the Transfer Tax Act I should follow these decisions, and deny the. motion. But in the case under consideration there is a marked distinction between it and the cases above cited, namely:

The Court of Appeals has, in the Pell case, decided that the act under which the assessment was made and the decree entered was absolutely unconstitutional and void. Therefore, the action of the court in this case is without warrant or authority in law, and, therefore, any judgment or decree of this court entered without jurisdiction and under a void statute may be held void. 12 Am. & Eng. Encyc. of Law, 311; People ex rel. Powder Co. v. Feitner, 41 App. Div. 544.

If the tax had not yet been paid under this decree, the Comptroller could not proceed to enforce it, and it would be perfectly proper for the court to set it aside on the ground of its invalidity, so that it would not be a seeming cloud upon the legacy.

The mere fact that the party has complied with the decree arid paid the money cannot operate to validate what would otherwise be a void decree, or rather to validate action taken under a void decree.

The Surrogate’s Court has power to vacate its judgments and decrees where they have been made without jurisdiction, and where they are void because they are rendered under statutes which have subsequently been declared unconstitutional. Matter of Flynn, 136 N. Y. 287; Freem. Judgm. (4th ed.), 188. “ The decided preponderance of authority justifies or rather requires, a court, on motion being made to vacate its judgment because it was without jurisdiction over the. person or the subject-matter, to inquire whether such is the fact, and if so, to grant the relief sought.”

The motion to vacate the decree in question is granted, and an order will be entered directing the Comptroller to refund the taxes heretofore paid thereunder.

Motion granted.  