ficiaries of Barber's will was lawfully taken and relieved the funds bequeathed to them from the operation of the inheritance tax of the laws of Illinois." People v. Kellogg, 268 Ill. 489, 501; 109 N. T. 304. b. WHEN HE CANNOT. In New York the rule no longer obtains. It was first modified in Matter of Ramsdill, 190 N. Y. 492; 83 N. E. 584. Where a distinction was made in cases of intestacy. The court said: "When a specific foreign legatee of a foreign testator can obtain satisfaction of his legacy in a foreign jurisdiction, the executor cannot be compelled to pay such a legacy out of the assets within our jurisdiction. This is the necessary result of the practical and obvious distinction between testacy and intestacy as applied to this subject of taxation. If a specific legatee needs not the intervention of our laws or courts to obtain what comes to him under a foreign will through foreign assets, in a foreign jurisdiction, our laws cannot coerce an executor into paying his legacy out of funds within our jurisdiction for the sole purpose of exacting a tax. "But in a case of intestacy the rule is essentially dif ferent, because the distributee takes an undivided interest in the whole estate; and if part of it happens to be within our jurisdiction, he can only get his share of what is here under our laws and through our courts. This is the theory upon which the nephews and nieces of the intestate in the case at bar are clearly taxable under our statute." By chapter 310 L. 1908. (subd. 3, § 220, of the present act), it was provided that all taxable non-resident property within the state not specifically bequeathed is deemed to be transferred proportionately; and foreign executors are no longer permitted to marshal the assets as to defeat or lessen the tax. The same result has been attained in Massachusetts through judicial construction. The court thus reasons: "The remaining question is whether the executors, by using the stock in Massachusetts corporations for the payment of debts and legacies, to the exemption of the property in New Hampshire, could relieve it from liability to a tax upon succession imposed by our law. We are of opinion that they could not. It was decided in Hooper v. Bradford, 178 Mass. 95; 59 N. E. 678; that taxes under this statute are to be assessed on the value of the testator's property at the time of his death. The rights of all parties, including the rights of the Commonwealth to its tax, vest at the death of the testator. It is true that the interest of a legatee is subject to an accounting; but it is an interest in the existing fund, and it is analogous to that of a cestui que trust. The executors cannot, by independent action in attempting to marshal assets according to their personal wishes, enlarge or diminish the rights of legatees, or of the Commonwealth. The property in Massachusetts is subject to the jurisdiction of our courts, and the executors must use and appropriate it according to law. Greves v. Shaw, 173 Mass. 205; 53 N. E. 372, 209. Callahan v. Woodbridge, 171 Mass. 595; 51 N. E. 176. The debts, the legacies in Massachusetts exempt from taxation and the expenses of administration are chargeable upon the general assets, as well those in New Hampshire as those in Massachusetts, and only a proportional part of the property in Massachusetts should be used in paying them. The balance is subject to the payment of a tax under the statute. The decision of the Probate Court upon this part of the case was correct." Kingsbury v. Chapin, 196 Mass. 533; 82 N. E. 700. PART V-PROCEDURE A. Preliminaries. 1. Motions to Exempt. 2. In Case of Nonresidents. a. Officials to be Addressed by Nonresident Attorneys. b. Companies Incorporated in States that Tax Nonresident Transfers. c. Companies Incorporated in States that Do Not Tax Nonresident Transfers. C. Proceedings on Appeal. 1. Jurisdiction of Probate Court. b. Decree of Distribution. c. Jurisdiction of the Tax Proceedings. 2. Assessment of the Tax. a. The Judge Acts as Taxing Officer. b. The Taxing Order. c. Report May be Remitted to Appraiser. d. Forms of Taxing Order. (1) Where There are no Contingent Remainders. (2) Present Taxation of Contingent Remainders. e. Effect of Decree Assessing Tax. 3. Appeal to the Surrogate. a. Notice of Appeal. b. Form of Notice. 4. Determination by Surrogate. a. Hearings on Appeal. b. On Motions to Exempt. c. Order Remitting Report. d. Supplemental Report of Appraiser. e. Second Taxing Order. f. Notice of Appeal from Second Taxing Order. g. Taxing Order Upon Second Appeal. h. Notice of Appeal to Appellate Division. 5. Before the Appellate Courts. a. Who May Appeal. b. Order Appealed From. c. Service of Notice of Appeal. d. Papers on Appeal. e. Costs. f. Appeals to Court of Appeals. g. To Supreme Court of United States. D. Subsequent Proceedings. 1. Motions to Modify Decree. a. Where There Was a Mistake of Fact. b. Where There Was Lack of Jurisdiction. c. May Not Correct an Error of Law. d. Laches. e. Bad Faith. f. Statute of Limitations. 2. Motions to Remit Penalty. 3. Mandamus. a. When Writ Allowed. b. When Refused. 4. Proceedings to Collect Delinquent Taxes. 5. Personal Liability of Executors and Beneficiaries. PART V-PROCEDURE A.- PRELIMINARIES "It is not enough for the legislature to declare that such interests are taxable. If no mode is provided for assessing and collecting the tax the law is imperfect and cannot, as to such interests, be executed. A tax cannot be legally imposed unless the statute, in addition to creating the tax, provided an officer or tribunal who shall appraise and assess the property on notice to the owner. Stuart v. Palmer, 74 N. Y. 188; Remsen v. Wheeler, 105 N. Y. 575. The principle decided in the cases cited applies to the transfer tax as well as to the assessments for public improvements. Matter of McPherson, 104 N. Y. 321." Matter of Stewart, 131 N. Y. 274; 30 N. E. 184. So, when a non-resident decedent owned both real and personal property, the surrogate had jurisdiction under the New York Act of 1887; but unless he owned real estate no machinery was provided for collecting tax; and hence his estate escaped taxation. This was remedied by amendment; but even such a distinction, if intentional, was held constitutional. Beers v. Glynn, 211 U. S. 477. Matter of Lord, 111 App. Div. 152; 97 Supp. 553; aff. 186 N. Y. 459; 79 N. E. 1110. Matter of Embury, 19 App. Div. 214; 45 Supp. 881; aff. 154 N. Y. 746; 49 N. E. 1096. 1. Motions to Exempt. When the estate is too small to be taxed there are provisions in nearly all the statutes for a motion, upon affidavit setting forth the facts, for an exemption; or, if |