When Vacated Newly Discovered Evidence. § 231 638. Interests of Beneficiaries under the Order. Under the order imposing the tax, the interests of different beneficiaries are separate and independent. Matter of Bogert, 25 Misc. Rep. 466, 55 N. Y. S. 751. 639. Vacating Order - Newly-discovered Evidence. Ordinarily, where the determination is set aside on the ground of newly-discovered evidence, the order setting it aside should not contain an adjudication contrary to the former determination, but should provide for a new hearing. This rule, however, does not make it improper for a surrogate, when incontrovertible evidence discovered since the entry of the order imposing a tax is presented to him establishing that the estate is not subject to any transfer tax, to vacate the order imposing the tax and it is not necessary for him to remit the matter to the official appraiser to make the computation upon which the taxability of the property depends, particularly as, under section 232 (now section 231) of the Tax Law, he is expressly empowered to determine the amount of the transfer tax, without appointing an appraiser. Matter of Cameron, 97 App. Div. 436, 89 N. Y. S. 977; affd., 181 N. Y. mem. 58, without opinion. (As to conclusiveness of order, see Matter of Lawrence, 96 App. Div. 29, 88 N. Y. S. 1028.) 640. Report Can Be Sent Back for Correction. If a surrogate inadvertently confirms a fatally defective report, he may vacate the order of confirmation and recommit the report for correction. Matter of Earle, 74 App. Div. 458, 77 N. Y. S. 503. 641. Surrogate's Power to Correct Clerical Errors. There is no statutory limitation of time upon the exercise by a surrogate of the power declared by sub § 231 Entering Orders of Exemption. division 6 of section 2481 of the Code of Civil Procedure to correct, upon motion, a clerical error in a decree made by him, where the motion does not involve a review of his decision upon the merits, but simply calls for a correction of the record in accordance with the facts. Matter of Henderson, 157 N. Y. 423. 642. Order of Exemption - Ex Parte Application for. There is no express provision directing the surrogate to enter an order exempting an estate which appears by the report of the appraiser to be exempt, but the practice has been to enter such orders, and it would seem that authority for such action, where transfer tax proceedings have been regularly instituted, is given in the language used in section 228 (formerly section 229), which declares that the Surrogate's Court shall have jurisdiction to hear and determine all questions arising under the provisions of this article, 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. It has also been the practice in some counties for the surrogate to enter an order upon the ex parte application of the representatives of the estate upon an affidavit or petition purporting to show the value of the estate to be below the taxable limitations, but the surrogate in such a case is clearly not authorized to entertain such a proceeding without due notice to the State Comptroller. (See § 231.) The Appellate Division of the Second Department says, in the Matter of Collins, 104 App. Div. 184. “If an effective order of exemption can be made without notice to the State Comptroller, it would seem that the State might thus be barred of all rights to enforce Id.; When Should Be Refused. § 231 or recover any transfer tax by the ex parte action of the surrogate. I do not think that the procedure established by the Tax Law was designed to permit any such result; but even though the lack of notice be not deemed a jurisdictional defect, it seems to me that it should be regarded as an objection which is fatal to the order upon a direct review thereof by appeal." 643. When Orders of Exemption Should Be Refused. Where application is made by trustees for orders declaring certain trust funds exempt from transfer tax, such applications should not be favored where it appears that the decedents, who were nonresidents, left considerable property within this State subject to tax, but by reason of the executors withholding information and refusing to submit themselves to the jurisdiction of the court the tax could not be determined. Apart from this consideration, however, application for orders of exemption should be based upon positive proof of the facts claimed to create the exemption. (Matter of Perry.) Matter of Lejee, N. Y. Law Journal, January 13, 1905. Surrogate Thomas. 644. Appointment of Guardian. No appointment of a special guardian for an infant should be made by the surrogate, where the infant's interests are all in remainder and cannot be determined or taxed in the pending proceedings. Matter of Post, 5 App. Div. 113, 38 N. Y. S. 977. By the amendment of 1905 the surrogate may appoint a guardian at any stage of the proceedings in behalf of an infant or other incompetent, providing the interest of such infant or incompetent is presently involved, and is adverse to that of any of the other interested persons. (§ 231.) § 231 Appointment of Guardian for Infant. Where a decedent died in 1888, which was prior to any provision authorizing the appointment of a guardian to represent an infant in transfer tax proceedings (chapter 672, Laws 1899), the omission to appoint special guardian for infant legatees pending the appeal was not destructive of the jurisdiction of the surrogate to tax their legacies. The expression in the amendment of 1899 to the effect that the surrogate may appoint a guardian for an infant" at this stage of the proceedings," gave the surrogate no authority to appoint a special guardian at the inception of the proceedings, or during its pendency, except upon the application of an infant over fourteen years of age, or of some one on his behalf when under fourteen years of age. Matter of Jones, 54 Misc. Rep. 202-207. 645. When Application to the Superintendent of Insurance Necessary. In all cases where it is necessary to determine the value of any future or contingent estate, income, or interest therein limited, contingent, dependent, or determinable upon the life or lives of persons in being, the surrogate, upon the facts contained in the appraiser's report, is directed to apply to the Superintendent of Insurance, who is required to determine the value thereof and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct. (See ante, page 446, where this provision of § 230 of the Tax Law, is further considered.) The value of remainder interests should also be ascertained by the Superintendent of Insurance. Matter of Martin, N. Y. Law Journal, April 16, 1909. Surrogate Cohalan. When Surrogate to Order Appraisal. § 231 646. Surrogate Must Order an Appraisal upon Application of an Interested Party. The Comptroller presented to the surrogate of Kings county a petition alleging upon information and belief and verified by the Comptroller's attorney that a certain nonresident decedent died November 30, 1904, leaving property in the county of Kings subject to a transfer tax, said petition containing all the usual allegations in such cases. Surrogate Church, after examining the petition, indorsed thereon " papers insufficient," and refused to order an appraisal, holding that facts must be placed before him from which he might judicially determine that the estate was subject to taxation. The State Comptroller thereafter applied to the Supreme Court for a writ of mandamus to compel the surrogate to order an appraisal of the estate, and the motion was denied by Mr. Justice Maddox, and from the order denying the motion the Comptroller appealed to the Appellate Division. The Appellate Division held that under section 230 of the Tax Law the statute is mandatory upon the surrogate to act either on his own motion or upon the application of any interested party, including the State Comptroller, and that his duty to act in either case is imperative. That the application for the appointment of an appraiser was proper and sufficient (Matter of Donohue, 44 App. Div. 186), and that mandamus was the proper remedy, its function being to compel action and not to review action taken, and application for a peremptory writ of mandamus was granted. Matter of Kelsey v. Church, 112 App. Div. 408. |