
    Kings County.
    Hon. ABRAHAM LOTT, Surrogate.
    July, 1888.
    Frazer v. People. In the matter of the estate of Susan F. Frowe, deceased.
    
    
      It seems, to be primarily the duty of an executor to apply for an appraisement of interests passing by the will of his decedent, taxable under the “ collateral inheritance tax ” act. The power given to the Surrogate, of his own motion to cause an appraisement to be made, and to fix the tax, was not intended to relieve personal representatives of this obligation.
    Four days before the expiration of the period of eighteen months after the death of testatrix, who died November 27th, 1886, the executors paid the “ collateral inheritance tax,” assessed upon a life estate and remainders, passing under the will. About a month before such payment, the district attorney instituted proceedings to compel such payment.—Held,
    
    1. That, there having been no “refusal or neglect ” to pay the tax, within the meaning of L. 1887, ch. 713, § 17, costs should not be awarded against the executors.
    2. That there was probable cause for instituting the proceedings, and the district attorney was entitled to a certificate under id., § 19.
    
    Application for costs of proceedings on assessment of “ collateral inheritance ” tax. The facts appear from the brief and opinion.
    Jas. W. Ridgway, district attorney, for the application.
    
    Jackson & Bure, for Jennie Frazer and another, executrices, opposed,:
    
    The testatrix died November 27th, 1886. Her entire estate was personal in character. By her will, a life estate was created therein, for the benefit of her brother (who died before the testatrix) with a succeeding life estate, after his death, to her sister-in-law, Elizebeth Frazer, and, upon the termination of the second life estate, there was a remainder over, given to her two nieces. No order was made, assessing- the estate for the purpose of taxation, as required in the case of an outstanding life estate, until May 27th,. 1888. On May 23d, 1888, and within eighteen months after the death of the testatrix, the tax was paid. Prior to that, and on April 17th, 1888, proceedings were taken by the district attorney to compel the payment of the tax. The matter was adjourned by consent until this day, and the sole question in the case now is, whether the proceedings were prematurely taken, so that the estate is subject to the payment of costs.
    1. This tax did not become due and payable until May 17th, 1888. By § 4 of the act of 1887, in effect the same as the similar section of the act of 1885, it is provided as follows: “All taxes imposed by this act,, unless otherwise herein provided for, shall be due and payable at the death of the decedent.” By § 2 of the act of 1887, of like effect with a similar section of the act of 1885, where there is an outstanding life estate-with a remainder over, the Surrogate shall “assess and determine the value of the estate.....subject-to the tax.” By § 13 of the act of 1887, it is provided, that this determination shall be made by an appraiser who may be appointed by the Surrogate, either upon his own motion, or upon the application of any interested party. But it is further provided that, in the case of an outstanding life estate with a remainder over, the tax in question shall wot be due and payable until after the Surrogate, upon the report of the appraiser, has assessed and determined the value of the estate for the purpose of taxation. In this case, that order was not made until May 17th, 1888, and under § 17, the treasurer or comptroller could not notify the district attorney until that date. It is not pretended that such notification has been given since that time.
    2. Although it is perfectly clear that, where there is an outstanding life estate, as in the case at bar, the tax is not due and payable until after the Surrogate has assessed and determined the value of the respective estates, we think that in no case can proceedings be instituted by the district attorney until the expiration of eighteen months from the death of the testator. Although, by § 4, the tax imposed by this act is due and payable at the death of the decedent, yet the executor is given eighteen months in which to pay the same without interest. By § 16, the Surrogate cannot issue a citation in this matter unless it shall appear that the tax has not been paid according to law; but inasmuch as, although the law makes the tax due at the death of the testator, yet the law also gives the executor eighteen months in which to discharge the debt, it cannot be said that the tax has not been paid according to law until after the expiration of that time. Further than that, § 17 of the same act provides, that the district attorney shall be notified after the refusal or neglect of the person interested in the property, liable to said tax, to pay the same. It would be a contradiction in terms to say that a party had refused' and neglected to do an act until the expiration of the time given him by law within which to do the act.
    3. There is nothing in the act which makes the costs a matter of right, and it follows, therefore, that they can only be awarded by the decree in the discretion of the Surrogate, and we believe that the Surrogate in the exercise of that discretion would not impose costs until after the expiration of eighteen months, coupled with a neglect and a refusal at that time to pay the tax. The proceedings should be dismissed as prematurely taken, but inasmuch as the question is a new one, we consent that it be without costs.
   The Surrogate.

The testator died November 27th, 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. Fraser, with remainder to certain legatees. On April 17th, 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 17th, 1888. On May 23d, 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 § 13 of chapter 713, Laws of 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 § 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 he 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, ch. 713, § 17.

For the reasons I 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, ch. 713, § 19.

Matter dismissed.  