
    In the Matter of the Estate of Harrison Williams, Deceased.
    Surrogate’s Court, Nassau County,
    June 27, 1961.
    
      Sullivan & Cromwell (Henry N. Ess III, of counsel), for executors. Monroe Fink for State Tax Commission.
   John D. Bennett, S.

This is a motion by the executors to reopen an order dated June 28, 1957, fixing the amount of the New York State estate tax and remitting the matter to the appraiser for amendment.

The decedent died on November 10, 1953, leaving a last will and testament naming his wife as principal beneficiary, which was admitted to probate on December 2, 1953. Letters testamentary were thereupon issued to three executors, one of whom died in 1959. The surviving executors continued to act thereafter and are the moving parties in this motion.

On June 28,1957, an order based on the report of the appraiser, was signed fixing the amount of the tax. Subsequently the tax was paid. On March 5, 1958, a certain action was commenced in the United States District Court against the estate of the decedent and others. On June 24, 1958, the executors corresponded by letter with the State Tax Commission, claiming a refund of the entire tax paid in the event that the parties bringing the action against the estate were successful. On November 7, 1958, the decedent’s widow settled the action mentioned previously herein and said settlement was approved by the United States District Court on February 28, 1959. The executors did not take part in the settlement. The present motion was brought on June 17, 1959, and adjourned from time to time until the present date.

The executors in their moving papers have failed to state sufficient grounds to justify the opening of the order dated June 28, 1957, fixing the tax.

The mere allegation that decedent’s widow settled an action pending against the estate, which had been commenced after the order fixing tax was signed, is not sufficient to show that the executors did not or should not have known of the existence of the underlying claims, especially where the original tax proceeding shows that two actions involving similar parties were pending at the time of decedent’s death, and that one other action had been dismissed on appeal in the Federal courts on the defense of the Statute of Limitations.

The request to reopen the order of June 28, 1957, based upon additional administration expenses and expenses of litigation, is also denied on the basis that the moving papers do not show that these expenses were not incurred in relation to proceedings which were unknown to the executors at the date of said order fixing tax.  