
    In the Matter of the Estate of Amelia G. Ullman, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 13, 1893.)
    
    Collateral inheritance tax—Surrogate has no power to declare PROVISIONS OF WILL VOID.
    " A surrogate has no power, in proceedings to fix the collateral inheritance tax, upon his own motion, to construe the will and declare certain provisions thereof void.
    Appeal by William B. Hooper, Joseph Hooper and Samuel Hooper, heirs of the deceased, from order of surrogate, made in collateral inheritance tax proceedings, declaring certain provisions of the will void and fixing the tax accordingly. •
    
      De Lagnel Berier, for app’lt;
    
      Horace Bussell and Jabish Holmes, Jr., for resp’ts
    ex’rs etal.\ Edgar J. Levey, for resp’t, comptroller.
   Yan Brunt, P. J.

The sole question involved upon this appeal is, whether, in proceedings to fix the collateral inheritance tax, the surrogate has power upon his own motion to declare void the provisions of a will. It is urged, upon the part of the respondents, that such power exists as an incident to his general jurisdiction over the subject of fixing such tax; that the act gives the surrogate in express terms jurisdiction to hear and determine all questions in relation to the tax; that he acts judicially, and, therefore, has, in addition to the power expressly given, all incidental powers which may be necessary to enable him to fix the tax, and, therefore, that the power conferred does include the right to construe a will, even of real estate, it being utterly impossible to fix the tax on the estate without so doing. If this contention is true, it is the most remarkable instance of the conferring of power by implication that our statute book affords. The basis of the argument seems to rest upon the fact of the inconvenience which would arise in the fixing of this tax did not .that power exist in the surrogate. We do not think that merely because of inconvenience in the administration of an unwieldly, incongruous, ill-considered and blindly drawn statute, such impli■cations should be indulged in. It certainly cannot be claimed that in this proceeding before the surrogate his adjudication upon the validity of the provisions of a will affecting real estate shall be final and conclusive. If it is not, however, cases would continually arise in which, after the surrogate had assessed the tax, holding the will to be valid or invalid, as the case might be, upon a bill filed a contrary result might be arrived at, and the real beneficiaries mulcted in a tax without the slightest authority in law. It certainly cannot be that the determination of the surrogate that the provisions of a will are valid, in these informal proceedings for the purpose of assessing this tax, makes the question as to the validity of the provisions of that will res adjudícala, for the reason that in proceedings initiated in the manner in which this proceeding was initiated the surrogate has no power to determine that legacies are free from taxation. In re Wolfe, 50 St. Rep., 115, decided December 16, 1892.

And besides, if this power resides in the surrogate of his own motion to declare provisions in a will invalid for the purpose of _ fixing the tax under these acts, then we cannot see why he may not institute an investigation for the purpose of proving that the ■execution of the will was obtained by undue influence or fraud, or that the testator had not testamentary capacity, and that, therefore, there was in reality no will, powers which are equally neces-, sary for the purpose of levying the tax as the power to construe’ and destroy.

There is another reason why an adjudication by the surrogate upon this subject cannot be final, and that is, because at any time within one year after probate of a will of personal property any person interested in the estate of the decedent may institute proceedings for the revocation of such probate; and in respect to real property this right, in a different form, exists for a much longer period of time. ’Hence, after the surrogate has assessed the tax, and the executors have paid it, subsequent proceedings may develop the fact that such tax as assessed was entirely unauthorized. The ordinary rule governing the interpretation and effect of wills is that their provisions shall be carried out by the persons intrusted therewith, until they are attackéd by some person who is interested in the property of the decedent which is affected thereby. A departure from this rule, and the giving to the surrogate, in these proceedings, power to construe wills, and determine upon their validity or invalidity, would necessarily lead to inevitable confusion and uncertainty, and the results would be far more detrimental than those which can possibly arise from the refusal to confer such authority by judicial legislation. If the law in question is defective in this particular, as it manifestly is in very many -others, it is for the legislature, not the court, to supply the -omission.

It has been claimed that the cases of In re Verplanck, 91 N. Y., 439, and Purdy v. Hayt, 92 id., 446, are authority for the contention of the respondents upon this appeal, but it is apparent upon an examination of those cases that they have no relevancy to the question at bar. All that the court decided in those cases was that upon the accounting of executors the surrogate might determine whether the personal property, or that which had become personal property, had been properly distributed, or to whom it should be paid. It is true that the construction of the will might be involved in this determination, but all that-that construction decided was the propriety of disbursements made in the administration of the estate, or to whom the fund in hand should be distributed, which is in harmony with the power expressly conferred by § 2624 of the Code upon the surrogate to construe the disposition of personal property in a will. But in the case at bar the authority of the surrogate to construe the disposition in a will of real estate is claimed, not by direct legislation, but simply by implication, an authority which has never yet been conferred upon any such officer by any legislation.

The order should be reversed, with costs.

O’Brien and Barrett, JJ., concur.  