
    Matter of the Estate of Julia A. Bell, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      March, 1916.)
    Taxes—Transfer tax—Assessing tax upon mortgage—What is sufficient PROOF AS TO VALUE OF MORTGAGE-APPEAL-EXECUTORS AND ADMINISTRATORS—Code Civ. Pro., § 2753.
    Where the report of a transfer tax appraiser contains no competent evidence of the value of a mortgage owned' by decedent at the time of her death, but the testimony shows that her executors foreclosed the mortgage and bid in the property at the sale for the ben.efit of the estate for the sum of $5,000, an order assessing a tax upon the mortgage at a valuation of $16,500 will be reversed and the report of the appraiser remitted for correction and the taking of further testimony as to the value of the mortgage, it appearing that he refused to allow material questions propounded by the executors to be answered.
    While an affidavit as to the value of the mortgaged premises may be considered, it is not in itself sufficient proof of the value of the mortgage which may be affected by the financial responsibility of the mortgagor, the length of time it has to run and the character and location of the mortgaged premises.
    A transfer tax appraiser upon a hearing to ascertain the value of a decedent’s estate should allow any question which tends to elicit information that may assist him in determining the value of the property, and a witness should be allowed to answer a question objected to, so that on appeal from an ordbr entered on the appraiser’s report the surrogate may consider the materiality of the answer.
    The fact that one of the executors, an attorney and counselor at law, represented the estate in his professional capacity, did not warrant the appraiser in refusing to allow expenses of administration as upon an accounting the surrogate may allow such an executor, under section 2753 of the Code of Civil Procedure, a reasonable sum as compensation for professional services rendered by him.
    
      The power of the surrogate, in such a case, to grant such an allowance is governed: by the law in force when the application therefor is made.
    The expense of foreclosing the mortgage is an expense of administration and should be deducted from the assets .of the estate.
    Appeal from an order assessing -and fixing the transfer tax.
    J. C. O’Conor, for executors.
    Lafayette B. Gleason (Schuyler C. Carlton, of counsel), for state comptroller.
   Fowler, S.

—The executors contend that the appraiser erred in placing a valuation of $16,500 on a certain bond and mortgage owned by the decedent at the time of her death. The testimony taken -before the appraiser shows that the executors foreclosed the mortgage, sold the mortgaged premises at public auction and bid it in for the benefit of the estate at the sum of $5,000. The appraiser’s1 report, .however, contains no com'petent evidence of the value of the mortgage at the date of decedent’s death. The state comptroller submitted an affidavit showing the value of the mortgaged premises; but while this is an element to be taken into consideration in ascertaining the value of the mortgage, it is not in itself sufficient proof of the value of the mortgage. That value may be affected by the financial responsibility -of the mortgagor, the length of time the mortgage has to, run, the character of the mortgaged premises and their location. While many of the questions propounded by the executors were incompetent, some of those which the •appraiser disallowed were clearly competent and should have been allowed. Upon a hearing held before a transfer tax appraiser for the purpose of ascertaining the value of a decedent’s •estate, he should allow any question which tends to elicit information that may .assist him in determining the value of the property. A witness -should be allowed to answer, even if the question, is objected to, as -the materiality of the answer may be considered by the surrogate upon an appeal taken from the order entered upon the appraiser’s report. As the appraiser in this matter refused to allow material questions propounded by the executors, the report will be remitted to him for the purpose of taking further testimony as to the value of the bond and mortgage. The appraiser erred in refusing to allow a reasonable sum as expenses of administration. The fact that one of the executors, who is an attorney and counsellor at law, has represented the estate in his professional capacity does not warrant the appraiser in refusing to allow expenses of administration, as the surrogate may upon an accounting allow such an executor a reasonable sum as compensation for professional •services rendered by him. (See Code Civ. Pro., § 2753.) The power of the surrogate to grant such an allowance is governed ■by the law in force when the application for an allowance is made. Taking into consideration the services rendered by the attorney in this proceeding, and the value of the estate, I am inclined to think that $350' would be a reasonable deduction for such services. The expense of foreclosing the mortgage is also an expense of administration and should be deducted from the assets of the estate. The order fixing tax will be reversed and the appraiser’s report remitted to him for correction and for further testimoiny as indicated.

Order reversed.  