In a proceeding before a transfer tax appraiser, if the question as to whether the decedent was a resident of this State is raised, the surrogate has power, under section 2564 of the Code of Civil Procedure, to refer the question to a referee to take testimony and report with an opinion, and to direct the appraiser to hold further proceedings until the coming in of such report. Matter of Bishop, 111 App. Div. 545.

648. Surrogate Can, However, Determine Decedent's Residence from the Report of the Appraiser.

In the Matter of Draper, N. Y. Law Journal, December 30, 1908, Surrogate Beckett held that the Matter of Bishop (ante) does not prohibit the surrogate from accepting the determination of the appraiser, and that he can adopt the report of the appraiser as his own determination of the question of domicile, where testimony on the question of residence has by mutual agreement been presented to the appraiser.

649. Necessity for Determining Residence.

If the executor of a nonresident decedent denies that the decedent was a resident of the State of New York, the surrogate has no power, until the question of residence has been determined, to require the executor to disclose what stocks of foreign corporations were owned by the decedent at the time of his death. Matter of Bishop, 82 App. Div. 112, 81 N. Y. S. 474. 650. Can Issue a Commission.

The surrogate has power to issue a commission to take the testimony of a nonresident witness for use before an appraiser in transfer tax proceedings upon the estate of a nonresident decedent. Matter of Wallace, 71 App. Div. 284, 75 N. Y. S. 838.

May Construe Will.

651. What Moving Papers Must Show.

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The moving papers upon an application for a commission must show that the property which is alleged to be subject to the tax is within the jurisdiction of the court. Matter of Wallace (supra).

652. May Construe Will.

The surrogate is clothed with power and it is his duty to decide whether any property of the decedent has passed to another under the will, or the intestate laws, and may determine whether the dispositions made by a will are void and, if so, the ultimate devolution of the property of the decedent. Matter of Ullman, 137 N. Y. 403. Citing In re McPherson, 104 N. Y. 306; In re Enston, 113 N. Y. 174; In re Sherwell, 125 N. Y. 379; In re Roumaine, 127 N. Y. 80; In re Stewart, 131 N. Y. 274; In re Wolfe, 137 N. Y. 205; In re Prime, 136 N. Y. 347; In re Swift, 137 N. Y. 77. To the same effect see Matter of Peters, 69 App. Div. 465, 74 N. Y. S. 1028.

653. Decision of Supreme Court as to Ownership of Property Is Binding on Surrogate.

In a proceeding to modify a decree assessing and fixing a transfer tax and for a refund of tax paid, a decision of the Supreme Court determining that an undivided interest in real estate was not the property of the testator, when in transfer tax proceedings on his estate it had been assumed to be his, is conclusive upon the surrogate although the State Comptroller was not a party to the action. Matter of Willets, 119 App. Div. 119; affd., 190 N. Y. 527.

654. When Interest Is Conclusively Fixed.

Any right or interest of a party which is involved in an appeal to the Court of Appeals, should be regarded

as conclusively fixed and established by the decision of such court, and it is not competent for an inferior tribunal to review such determination by a subsequent appeal taken in such action or otherwise. Matter of Cook, 125 App. Div. 114; affd., 194 N. Y. 400.

655. Corresponding Sections of Former Acts-Relating to the Determination of the Surrogate.

Section 13 of the Act of 1885 provided that from the report of the appraiser the surrogate shall forthwith assess and fix the then cash value of all estates, annuities, and life estates, or term of years, growing out of such estate, and the tax to which the same is liable, and that he should immediately give notice thereof to all interested persons by mail. Section 13 was amended by chapter 713, Laws 1887, in effect June 25th of that year, by providing that the value of every future and contingent estate should be determined by the Superintendent of Insurance in accordance with the methods and standards of mortality and value employed by said Superintendent in ascertaining the value of the life insurance policies.

The provisions of section 13, as amended, were substantially re-enacted by chapter 399, Laws 1892 (§ 13), in effect May 1st of that year, and were substantially re-enacted by chapter 908, Laws 1896, in effect June 15th of that year, in section 232 of said act, with amendments providing that the report of the appraiser should be made in duplicate, and one copy filed in the State Comptroller's office, and a new provision allowing the Comptroller of the State, within two years from the entry of an order, where he believes the appraisal and determination has been fraudulently or erroneously made, to make application to a justice of

Id.; Under Former Acts.

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the Supreme Court for a reappraisal of the estate. Section 232 was amended by chapter 284, Laws 1897, in effect April 16th of that year, by requiring a certified copy of the determination of the justice to be transmitted to the Surrogate's Court of the proper county.

By chapter 672, Laws 1899, in effect May 25th of that year, the provision in reference to the appointment of a guardian for an infant or an incompetent was added to section 232.

By chapter 173, Laws 1901, in effect April 1st, amended section 232 by providing that the fees of the appraiser appointed by the justice of the Supreme Court shall be $5 per day, and provides for a certified copy of the assessment by the justice to be transmitted to the Surrogate's Court, which was doubtless inadvertently omitted from the amendment of 1899.

By chapter 368, Laws 1905, in effect June 1st of that year, a part of the provisions of former section 232, and relating to the determination of the surrogate upon the filing of the appraiser's report, application to Superintendent of Insurance to compute the value of future and contingent estates, the notice to be given to those interested after the surrogate has fixed the tax, and the provision in reference to appointing a guardian for an infant or an incompetent, were reenacted in section 231 of the Act of 1905. This section also contains a new provision, requiring the surrogate to forward a copy of the taxing order to the State Comptroller, also copies of all orders entered by him affecting in any way the transfer tax on any estate, including orders of exemption.

Chapter 62 of the Laws of 1909, being chapter 60 of the Consolidated Laws, made no change in the provisions of this section.

CHAPTER XVII.

APPEAL TO THE SURROGATE, § 232, TAX LAW - APPELCOURT OF APPEALS UNITED STATES