
    Matter of the Appraisal of the Property of Philip Embury, Deceased.
    (Surrogate’s Court, New York county,
    March, 1897.)
    1. Collateral inheritance tax — Jurisdiction. '
    The jurisdiction of a Surrogate’s Court over a proceeding to appraise the property of a nonresident who died in 1887, instituted after the passage of ■ the Transfer Tax Act, is governed by the provisions of such act, and is not affected by.the fact that the decedent owned no real property in this state.
    
      2. Same — Construction of.
    The references in the Transfer Tax Act to “ this act ” and1 “ this article ” apply to and include the Collateral Inheritance Tax Acts, as these successive acts were a continuation each of the other.
    3. Same—Jurisdiction.
    The existence of unadministered assets within this state is not essential to give a Surrogate’s Court jurisdiction to adjudicate a tax upon the property of a nonresident decedent, or enforce its payment.
    Philip Embury was domiciled at West Orange, ETew Jersey, where he died December 11, 1887,' leaving a will admitted to probate by the surrogate of Essex county, ETew Jersey. The decedent had on deposit at the time of his death moneys in bank in the city of ETew York and owned stock in various domestic corporations of the state of ETew York., Upon the petition of the comptroller of the city of ETew York an appraiser was appointed October 9, 1896, to appraise the property of the decedént within the state of ETew York, and the appraiser issued the usual notices to appear on a fixed day. ETo one appearing before the appraiser, the testimony of witnesses was taken as to the property of the decedent above mentioned. Thereafter, on the application of the comptroller, subpoenas were issued by the surrogate requiring the attendance of the executors before the appraiser on an adjourned day. The executors thereupon applied to the surrogate for an order that the city comptroller show cause why the proceeding should not. be vacated for want of jurisdiction. The facts are fully set forth in the opinion of the surrogate.
    Emmet R. Olcott, for the comptroller of the city of New York.
    Lord, Day & Lord, for the executors.
   Fitzgerald, S.

The above-named decedent died on December 11, 1887. He then resided in the state of Hew Jersey, but left a large amount of personal property consisting of stocks in domestic corporations and cash deposits in banks in this city. The will was not proved in this state, nor were letters issued herein, nor was any effort made to have the transfer tax upon the succession fixed, nor was any part thereof paid. On the 9th day of October,. 1896, a petition was filed by the comptroller of this county setting forth the foregoing facts and praying that an appraiser might .be appointed. The testimony of the officers of the companies in which the deposits of the decedent were made, or in which he owned stock, was taken before the appraiser. Thereafter the respondents procured an order to show cause why the “ proceeding should not be dismissed ■ on the ground that this court has not jurisdiction thereof or to proceed therein.” The appearance filed by the respondents, the executors, is limited to the purpose of objecting to the jurisdiction of this court herein, and they do not appear generally or submit themselves to the jurisdiction of the court in this proceeding.

It is claimed on behalf of the moving parties that the court is without jurisdiction, for the reason that the decedent at the" timé of his death did not own any real property in the state of Hew York. This claim is based on section 15 of the act of 1887, which provides as follows: Section 15. The Surrogate’s Court in the county in which the real property is situate of a decedent who was not a resident of the State, or in the county of which the decedent was a resident at the time- of his death, shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act, and the surrogate first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other.” This provision, with reference to the jurisdiction of the surrogate, was amended, however, by section 10, chapter 399 of the Laws of 1892, by providing as follows: The Surrogate’s Court.of every- county of the state having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent whose property is chargeable with any tax under this act, or to appoint a trustee of such estate or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and' determine all questions arising under the provisions of this act, and to do any act in relation thereto authorized by law to be done by a surrogate in other matters' or proceedings coming within his jurisdiction.” In the Matter of Davis, 149 N. Y. 539, the court squarely held that “ the procedure is controlled by the statute as it existed at the time this proceeding was instituted. It is a general rule that, in the absence of words of exclusion, a statute which relates to the form of procedure or the mode of attaining or defending rights, is applicable to proceedings pending or subsequently commenced. Hence, the rights of the parties depend upon the statute of 1885, while the method of procedure is governed by that of 1892.” While this decision hardly needs re-enforcement, attention is called to the following authorities in support of the position taken: “ Statutes determining the question of jurisdiction of parties and property affect only the remedy and form of proceeding.” Potter’s Dwarris on Statutes, 480; Litchfield v. McComber, 42 Barb. 288-9; Morse v. Goold, 11 N. Y. 281; Hauptman v. Catlin, 20 id. 247; Trustees N. Y. P. E. Public School v. Davis, 31 id. 574-584; Eggers v. Man. Ry. Co., 27 Abb. N. C. 463. In Morse v. Goold, 11 N. Y. 281, the Court of Appeals had occasion to consider the effect which a change of remedies had upon the contract. And it determined that an act which merely modifies the remedy for enforcing the contract neither disturbs it nor substantially impairs its efficiency. That it does not conflict with the provisions of the Constution of the United States forbidding any state to pass a law impairing the obligation of contracts. After reviewing the adjudicated cases, the court says: These authorities áre exemplifications of the principle that legal remedies are, in the fullest sense, under the rightful control of the legislature of the several states, notwithstanding the provision in the federal Constitution, securing the inviolability of contracts; and that it is not a valid objection to legislation on that subject, that the substituted remedy is less beneficial to the creditors than the one which obtained at the time the debt was contracted.” Litchfield v. McComber, 42 Barb. 298. In Eggers v. Manhattan Ry. Co., supra, questions arise as to the validity of the amendment to the Code of Civil Procedure, section 970, which made it obligatory that the issues arising on pleadings as to the value of property or damages be tried by a jury on application of either party; and the court held that the litigant in. equity suits had no vested right to have the trial proceed in a particular manner, and that it was competent" for the legislature to enact as to pending actions of such nature that these issues must be tried by a jury in.the manner as amended. The executors claim that the case does not come within the rule that a subsequent statute may cliánge the rule of practice. They criticise the cases cited in the Matter of Davis, hut ho authority is given for the position they •assume.

The second point made by the respondents is that the present Tax Law does not give the com*t jurisdiction of the proceedings, and they rely upon the reference in the Transfer Tax Act of 1892 and the revision of the Tax Law (chap. 908, Laws of 1896), in which the terms. “ this act ” and “ this article ” are employed. The Court of Appeals have held in Matter of Prime, 136 N. Y. 347, that the successive acts are a continuation one of the other. Chap. 677, Laws of 1892.

The executors likewise make the claim that if the testator had died subsequently to. the passage of the Transfer Tax Act this court would have no jurisdiction of the proceeding, because the estate having been entirely distributed by the foreign executors there was no property within this state when the proceeding was instituted to give thq court jurisdiction to grant letters. In support of this claim the executors cite Townsend v. Pell, 3 Dem. 367. In that case ancillary letters had been issued to one named in the will, which had theretofore been probated in Rhode Island. Mo citation was issued' and no notice was given to one of. the executors who had • qualified in the domiciliary jurisdiction. Application was made by the latter to set aside the ancillary letters granted, alleging .that soon after qualifying as executrix, and before the petition had been . filed for ancillary letters in New York county, she had reduced to her possession the assets in this county and had taken actual manual custody of the same. The court held that inasmuch as at the time of the entry of the decree granting letters there were no unadministered assets within the jurisdiction of this court, it was- without authority .in the premises, citing Evans v. Schoonmaker, 2 Dem. 249; affirmed on appeal, 31 Hun, 638. The case cited from 2d Demarest, it will appear upon examination, went upon the theory that there being .no assets unadministered, there was no necessity for the issuing of letters or requiring a bond, and as it did not. appear .from- the papers before the court upon the application that the decedent left any assets in the state, the application of the Creditor in relation to the penalty of the bond and of the petitioner for the grant of letters were both denied. The rule by which the court should be guided in the construction of the statute is stated in the Matter of Stewart, 131 N. Y. 274-282, as follows: “Where the question is whether a.certain subject of taxation is embraced within the act and brought within the power of taxation, it was held in. Matter of Enston, 113 N. Y. 174, that the statute should be strictly construed in favor of the citizen, since it assumes to impose a special burden upon particular property and persons, and is not in any proper sense a general tax. The question there "was whether a certain subject was taxable under the provisions of the first section. Where a particular subject is within the scope of that section and exemption from taxation is claimed on the ground that the legislature has not provided proper machinery for accomplishing the legislative purpose in the particular instance, a liberal rather than a strict construction should be applied, and if by fair and reasonable construction of its provisions the purpose of the statute can be carried out, that interpretation ought to be given to effectuate the legislative intent.” The intention of the legislature to tax personal property of nonresident decedents which has a situs here for the purpose of taxation cannot now be questioned. It is not disputed in the case at bar that the decedent left assets within this jurisdiction which were rendered liable to taxation by the act of 1887. Every implication should be resorted to> therefore, in order to find the machinery within the statute for the enforcement of the liability. If the- contention of the executors is correct, the only instance in which the tax can .be collected from nonresident decedents is where the personal representatives are not desirous of evading taxation, but voluntarily submit themselves* to the jurisdiction of the court. For if it be true that there must be unadministered assets within its jurisdiction in order to give any Surrogate’s Court .jurisdiction to adjudicate a tax or enforce its payment, then all that will be necessary for a foreign executor to do will be to take possession of the assets as soon as may be after the death of his decedent and remove them from the state. Such construction of the statute would defeat the main purpose of the amendment of 1887, viz., to tax the estates of nonresidents.

Application denied.  