Section 225, Tax Law. § 225 three nieces and two nephews of decedent. The appraiser included this property in the appraisal of decedent's estate, and the executors appealed from the taxing order on the ground that no tax should be assessed against the property so given to the nieces and nephews. Surrogate Thomas held that the property, referred to was taxable (Matter of Green, 153 N. Y. 223; Matter of Dingman, 66 App. Div. 228) but having been transferred by the decedent in his lifetime, and having never reached the hands of the executors or been administered upon by them, they are not liable for the tax thereon (Matter of Dingman, supra), and he modified his taxing order by inserting a provision that the executors shall not be liable for the payment of the tax on that part of the estate. Matter of Marsching, N. Y. Law Journal, May 7, 1907. 399. Refund of Tax Erroneously Paid. [§ 225, Tax Law.] If any debts shall be proven against the estate of a decedent after the payment of any legacy or distributive share thereof, from which any such tax has been deducted or upon which it has been paid by the person entitled to such legacy or distributive share, and such person is required by order of the surrogate having jurisdiction, on notice to the state comptroller, to refund the amount of such debts or any part thereof, an equitable proportion of the tax shall be repaid to him by the executor, administrator or trustee, if the tax has not been paid to the state comptroller or county treasurer; or if such tax has been paid to such state comptroller or county treasurer, such officer shall refund out of the funds in his hands or custody to the credit of such taxes such equitable proportion of the tax, and credit himself with the same in the account required to be rendered by him under this article. If 1. Sec. 10, Chap. 483, Laws 1885 - in effect June 30 of that year. Provided for a refund of taxes paid whenever debts shall be proven against the estate after payment of any tax. Section 12 of the Act of $ 225 Refund of Tax Erroneously Paid. after the payment of any tax in pursuance of an order fixing such tax, made by the surrogate having jurisdiction, such order be modified or reversed within two years 2 from and after the date of entry of the order fixing the tax, on due notice to the state comptroller, the state comptroller shall, if such tax was paid in a county in which the office of appraiser is salaried, refund to the executor, administrator, trustee, person, or persons by whom such tax was paid, the amount of any moneys paid or deposited on account of such tax in excess of the amount of the tax fixed by the order modified or reversed, out of the funds in his hands or custody to the credit of such taxes, and to credit himself with the same in the account required to be rendered by him under this article, or if paid in a county in which the office of appraiser is not salaried, he shall by warrant direct and allow the county treasurer of the county to refund such amount in the same manner; but no application for such refund shall be made after one year from such reversal or modification, and the 1885 provided for the return of tax erroneously paid, upon proof rendered to the Comptroller or county treasurer. Sections 10 and 12 aforesaid, became section 6 of the Act of 1892, and section 225 of the Act of 1896. 2-3. Sec. 12, Chap. 483, Laws 1885 in effect June 30 of that year.The State Treasurer was authorized to refund tax erroneously paid, but application must be made within two years from date of payment. By Chap. 713, Laws 1887-in effect June 25 of that year. — The time within which such application for a refund must be made was extended to five years from date of payment. By Sec. 6, Chap. 399, Laws 1892-in effect May 1 of that year. — The State Comptroller was authorized to refund illegal or erroneous taxes upon satisfactory proof presented to him within five years from payment, and this provision was continued in section 225 of chapter 908, Laws 1896. -- The By Chap. 284, Laws 1897-in effect April 16 of that year. five-year limitation was removed and from that time until April 11, 1900, there was no limitation within which the application for refund must be made after the payment of this tax, except possibly the limitation provided by section 6 of article 7 of the State Constitution, and the limitation that no application for a refund could be made after one year from the reversal or modification of the order assessing the tax. By Chap. 382, Laws 1900-in effect April 11 of that year. It was provided that if upon due notice to the State Comptroller the order assessing tax be modified or reversed within two years from and after the date of the entry of the order fixing the tax, the State Comptroller shall allow or direct a refund, etc., and also provided that no application for such refund shall be made after one year from such reversal Provisions Intended to Be Exclusive. § 225 representatives of the estate, legatees, devisees, or distributees entitled to any refund under this section shall not be entitled to any interest upon such refund, and the state comptroller shall deduct from the fees allowed by this article to the county treasurer the amount theretofore allowed him upon such overpayment. Where it shall be proved to the satisfaction of the surrogate that deductions for debts were allowed upon the appraisal, since proved to have been erroneously allowed, it shall be lawful for such surrogate to enter an order assessing the tax upon the amount wrongfully or erroneously deducted." 400. The General Subject. Section 225 of chapter 368, Laws 1905, is substantially the same as section 225 of the Act of 1896, as amended by chapter 284, Laws 1897; chapter 382, Laws 1900, and chapter 173, Laws 1901, the principal amendment of 1905, relating to the manner in which refunds in the counties where the office of appraisers are not salaried are to be paid when the order fixing the tax has been modified or reversed within the two-year limitation. 401. Provisions of This Section Are Exclusive. It was held in the Matter of Howard, 54 Hun, 305, 7 N. Y. S. 594, that the remedy provided by the Inheritance Tax Laws of 1885 and 1887 for securing a refund was exclusive, the court saying: "This is a simple and available proceeding afforded to the party or modification of said order. See Matter of Hoople, 179 N. Y. 308, which held that the amendment of 1900 (supra) barred all claims for refund where the order had not been modified or reversed within two years from the entry thereof and that this provision applied to orders entered prior as well as subsequently to chapter 382, Laws 1900, becoming a law. (April 11 of that year.) 4. By Chap. 323, Laws 1907-in effect May 9 of that year. Interest on refunds under this section is not allowed. 5. Chap. 284, Laws 1897-in effect April 16 of that year. This provision was first added to section 225 by the amendment of 1897. $ 225 Surrogate Cannot Order Refund. entitled to the reimbursement of the money paid for the tax and it was without doubt intended to be exclusive for this object." To same effect, see Matter of Hall, 27 N. Y. St. R. 133, 7 N. Y. S. 595. 402. Power of Surrogate to Order Refund. While the tax remains in the hands of the county treasurer, the surrogate may direct a refund. Matter of Park, 8 Misc. Rep. 550, 29 N. Y. S. 1081. (Act of 1892.) Under the Act of 1897, in effect April 16th of that year, there was no limitation as to the time within which an application must be made to reverse or modify a decree, and the court held in the Matter of Sherar 25 Misc. Rep. 138, 54 N. Y. S. 930, that such application to the surrogate for a refund need not be made within two years from the date of entry of the order fixing the tax, as section 1290 of the Code of Civil Procedure did not apply, and that the only limitation in section 225 was that no application for a refund should be made after one year from such reversal or modification or the order. 403. Surrogate Cannot Direct Comptroller to Refund. In the Matter of Knower, N. Y. Law Journal of January 16, 1904, the surrogate of New York county held, upon an application to modify an order on a basis which deducts from the value of the estate the amount of the appraisal of certain United States bonds, that he had no jurisdiction to adjudge against the State Comptroller that he shall refund or pay to the petitioner a sum of money. The power to make such an adjudication is vested in the Supreme Court. The Two-year Limitation. 404. Refund after Time to Appeal Has Expired. § 225 In the Matter of Coogan, 27 Misc. Rep. 563, 59 N. Y. S. 111; affd., 45 App. Div. 628, 61 N. Y. S. 1144, 162 N. Y. 613, which was an application for a peremptory writ of mandamus against the State Comptroller, it was held that the surrogate has power under section 225 of chapter 908, Laws 1896, as amended by chapter 284, Laws 1897, to modify his order and direct the tax to be refunded, although the time to appeal had expired, as its original imposition was without jurisdiction, and thereafter the Supreme Court will, by mandamus, compel the State Comptroller to procure the refund to be made. 405. The Two-year Limitation - Chapter 382, Laws 1900. The most important decision affecting the refunding of transfer taxes erroneously paid, and one which affected a large number of estates in each county where a transfer tax had been assessed and paid upon United States bonds between the years 1892 and 1898, was the recent decision of the Court of Appeals in the Matter of Hoople, 179 N. Y. 308. A decree was entered by the surrogate of Queens county on November 29, 1895, assessing a transfer tax upon the estate of William G. Hoople under the provisions of chapter 399, Laws 1892. A part of his estate consisted of United States bonds which were included in the property upon which the tax was based, and the tax was paid by the executors November 29, 1895. Shortly thereafter the Court of Appeals in the Matter of Whiting, 150 N. Y. 27, and Matter of Sherman, 153 N. Y. 1, decided that United States bonds could not be subjected to a transfer tax under the Act of 1892, section 22 of which defined the word " prop |