
    In the Matter of the Estate of Ella L. Moore, Deceased.
    Surrogate’s Court, New York County,
    December 31, 1934.
    
      
      Charles A. Curtin and Edgar Hirschberg, for the State Tax Commission.
    
      Simpson, Thacher & Bartlett, for the petitioner.
   Foley, S.

This is an application under section 233 of the Tax Law, as amended by chapter 711 of the Laws of 1930, for the composition of taxes heretofore fixed by the order of this court dated July 28, 1927, entered on the appraiser’s report. That order assessed a tax of $23,878.74 against the trustees for the benefit of persons of the five per cent class. The tax was assessed as if the entire trust created by the ninth article of the will would eventually vest in Constance M. Walker. No appeal was taken from that order. On this application the trustee contends that under article 9 of the will Constance M. Walker cannot receive the entire fund but only thirty-seven-sixtieths thereof and that on this basis the highest possible tax would be $7,902.14, and not $23,878.74, as fixed in the original order. The trustee seeks to use the lower figure in computing the composition tax in the present application.

It is conceded by the State Tax Commission that the order of July 28, 1927, was erroneous as it was impossible for the entire fund to vest in Constance M. Walker, but as no appeal was taken therefrom it is res adjudicata. The application to compromise the tax on the basis set forth in the petition is denied. In effect, the trustee seeks on this application to amend and modify the order of July 28, 1927. The error in that order was one of law. As stated by me in a similar application (Matter of Kountze, N. Y. L. J. Oct. 17, 1931, p. 323), the error should have been corrected by proper appeal to the surrogate from the pro forma order. In that case the attempt of the State Tax Commission, by modification of the formal order, to increase the assessment against the trustees from the one per cent to the five per cent class as a basis for the composition was denied.

I hold that the order of July 28, 1927, is res adjudicata and conclusive as a basis for the composition of the tax in the present application. (Matter of Fletcher, 219 App. Div. 5; Matter of Putnam, 220 id. 34; Matter of Wolfe, 137 N. Y. 205; Matter of Davis, 149 id. 539; Matter of Lauderdale, 150 Misc. 214.)

The composition of the tax must be based on the original order of July 28, 1927. The application to compromise on that basis is granted; that part of the application which seeks modification is denied.

Submit order on notice accordingly.  