the appraiser having already been considered.' Upon appeal to the surrogate from an assessment of the tax, security should be given to pay the tax and costs imposed.2

In Pennsylvania, where the tax is imposed upon real estate, the heir and not the administrator is given the right of appeal from the appraiser's report, but upon questions relating to the appraisement of the personalty the administrator only has the right of appeal,* and unless the report of the appraiser shows prima facie error no appeal can be taken therefrom."

Many of the statutes imposing this tax provide for restitution where the tax is erroneously paid.

In New York' application for restitution of taxes

1 Chapter V, sec. 5. As to whether in these proceedings the surrogate can be reviewed on appeal without findings of fact and conclusions of law has not been determined. The proceedings are of a summary nature, the appraiser in ascertaining the value of the property, receives all proof bearing upon the subject (see Chapter V, p. 117), and as additional proof will be received by the surrogate upon motion to confirm the appraiser's report, findings would seem to be wholly foreign to a proceeding of this nature. Consult, however, Matter of Falls, 29 N. Y. St. Rep. 759, and cases cited N. Y. Code Civ. Proc. sec. 2545.

2 Appendix, L. N. Y. sec. 13; Est. of Phelps, N. Y. Law Jour. January 23, 1890. As to costs of district attorney under the statute, see Chapter VII, p. 198, note; Matter of Stucke, N. Y. Daily Reg. April 25, 1889; Matter of Frowe, s. c. Frazer v. Peo. 20 N. Y. St. Rep. 355; Est. of Minturn, N. Y. Law Jour. July 18, 1890. See Chapter V, sec. 5.

4 Com. v. Coleman, 52 Pa. St. 468.

5 Goldstein's Est. 16 Phila. 319.

• See Chapter IV, pp. 112, 113.

7 Appendix, L. N. Y. sec. 12.

Red. Surr. Pr. 4th ed. p. 586,

considers this section incapable of enforcement under the N. Y.

Constitution, Art. 7, sec. 8.

paid erroneously must be made to the State treasurer on satisfactory proof rendered to the State comptroller by the county treasurer or county comptroller of such erroneous payment, and the application should be made within five years from the date of the payment. In this respect the method pointed out by the statute, is exclusive of any other remedy.'

But the question of restitution does not properly arise upon a mere appeal from the order assessing and fixing the tax taken after the payment of the tax to which appeal neither the comptroller or the State treasurer is made a party.2

§ 2. Lien of the tax and its effect. Statute of limitations. As a general rule taxes do not become liens upon the property subject to taxation until they have been assessed in the manner required by statute, unless specially declared to be liens, when they are termed statutory liens, and by force of statute immediately impress themselves as a liability upon the property. Under these statutes, the tax is generally made a lien upon real estate and sometimes upon personal property.

1 Matter of Howard, 54 Hun, 305; s. c. 27 N. Y. St. Rep. 8; Dewey v. Supervisors, 62 N. Y. 294; see, also, Matter of Hall, 27 N. Y. St. Rep. 133; Matter of Keech, N. Y. Law Jour. May 7, 1889; affd. 32 N. Y. St. Rep. 227.

2 Matter of Hall, supra. For return of duty under English statutes, see Layton on Legacy and Succession Duties, 7th ed. p. 236, et seq.

3 Lathers v. Keogh, 109 N. Y. 583; Dowdney v. The Mayor, 54 Id. 186.

Heine v. Commissioners, 19 Wall. 655; Tompkins v. Little Rock, &c. R. R. Co. 125 U. S. 119.

Under the English acts a very comprehensive lien is provided for upon real property,' the rights of bona fide purchasers without notice being at the same time protected, and to a certain extent, personal property liable to the tax is also subjected to a lien to secure its payment.

Under the New York statutes,3 the tax remains a general lien until it is paid. It also remains a charge upon the real estate until paid, and there is no limitation of time in favor of executors or legatees against the tax as a penalty or forfeiture under the civil code.5

A certified copy of the county treasurer's receipt showing payment of the tax will be full protection to bona fide purchasers," against any future claim.

The present statute of Pennsylvania, provides for a statutory lien of five years upon real estate, but after that time the lien is presumed to be paid as against purchasers of such real estate."

Under the original act of 1826, the tax became a lien from the time of the death of decedent when the

Matter of Vanderbilt, 10 N. Y. Supp. 239; citing Code of Civ. Proc. sec. 384, providing that " an action upon a statute for a forfeiture or penalty to the people of the State" must be brought within two years after the cause of action accrues.

• Matter of Keenan, 1 Con. Surr. Rep. 226; Matter of Astor,

tax accrued and so remained until fully paid.1 Subsequently, by act of 1855, it was limited to 20 years.2

The tax or lien, however, under these statutes only attaches to what remains for distribution after the expense of administration, debts and rightful claims of third parties are provided for. It attaches upon the net succession to the beneficiaries and not upon the securities or land in which the estate of the deceased may be invested."

The lien of the tax is, however, perpetual against owners, devisees or legatees, and the limitation in the acts apply only to the purchasers of such real estate.1

One of the most interesting cases upon the subject of the lien is that of Mellon's Appeal," in which the Supreme Court of Pennsylvania decided two important questions. First, as to the effect of the failure on the part of the State to prosecute the lien created in its favor as against a bona fide purchaser without notice within twenty years after the tax accrued,

1 Com. v. Coleman, 52 Pa. St. 470. 2 Mellon's App. 114 Id. 364.

See Cases cited, Chapter V, sec. 2; Orcutt's App. 97 Pa. St. 179; Com's. App. (Avery's Est.), 34 Id. 204; Strode v. Com. 52 Id. 181; Rubincam's Est. 38 Leg. Int. 261; Com's. App. (Cooper's Est.), 127 Pa. St. 435; affg. Cooper v. Com. 5 P. C. R. 271; Cullen's Est. supra; Matter of Enston, 113 N. Y. 181; Mellon's App. supra.

Cullen's Est. 26 W. N. C. 216; James' App. 2 Del. Co. Rep. 164; Mellon's App. supra.

Where a debt is barred by the statute of limitations, and is subsequently recognized by the decedent as a valid claim in the shape of a legacy for the amount. it is not liable to duty. Williamson v. Naylor. 3 Y. & C. 208; see Chapter VI, sec. 6.

5 Supra.

and, secondly, the effect of such neglect upon collateral heirs still possessing the property. The facts showed that in 1849 the wife of one B. died intestate, seized of certain lands, leaving as her only heirs her husband and three minor children. Under the statute the land descended to the children subject to the father's life-estate. In 1864 the eldest daughter died intestate without issue and unmarried, and subject to the life-estate and charged with the tax her third interest devolved upon her brother and sister. There was no administration of her estate. In 1866 the father as guardian of the two children sold three acres of the land, and in 1870 at maturity the children conveyed four acres to their father B., he releasing his life-estate in the residue of the property. He died in 1872 devising the land to children by a second marriage. The share of one child was sold in partition to Mellon and the other child sold part of her share retaining a portion. In holding that the action could not be maintained by the State the court said, "If the tax accrued at the time of Mrs. B.'s decease in 1864 by the devolution of her undivided interest in the land, and the Commonwealth might have proceeded at any time thereafter to have the same appraised and the amount of tax ascertained with a view of its ultimate collection, the lapse of twenty years without any steps having been taken in that direction raises a conclusive presumption of payment as to bona fide purchasers from those to whom the remainder in fee descended, and the lien theretofore existing in favor of the Commonwealth forthwith ceased as to such purchasers."

1 569.