When the failure to pay is due to his own misconduct he is personally liable. Hopkins' Appeal, 77 Conn. 644; 60 A. 657. Testamentary trustees knew of a deed by testator conveying away property but failed to disclose it and permitted an inheritance tax to be assessed against the whole estate held personally liable to cestui que trust. Lorenz v. Weller, 267 Ill. 230; 108 N. E. 306. Where executrix resigns without paying tax the court can appoint an administrator de bonis non to collect it. Chamberlain v. Stecher, 78 Ohio St. 271; 85 N. E. 526. An executor cannot be held personally liable for tax on property without the state which never comes into his possession, but must be included in his inventory. Gallup's Appeal, 76 Conn. 617; 57 A. 699. Matter of Kubler, N. Y. L. J., Aug. 6, 1915. The executor should not be charged with five per cent. interest upon the amount of the transfer tax upon the estate upon the ground that he should have had the tax assessed and paid within six months after the death of the testator, where the testator died October 10, 1896, and probate was issued February 3, 1897, and the tax was assessed May 27, 1897. In re Sudds, 32 Misc. 182; 66 Supp. 231. In Matter of Alfred W. Kubler, N. Y. Law Journal, August 6, 1915, Surrogate Cohalan held: "This is an appeal by the executors from the transfer tax appraiser's report and the order entered thereon, upon the ground that these do not each contain a provision exempting the executors from such liability as arises, with which they would be chargeable for the payment of the transfer tax upon that portion of decedent's estate amounting to $29,326.48, which at the time of his death and still is situated at Basel, Switzerland, and which will be administered in that country. Neither the executors nor this court appear to have any control over the disposition of this money (Matter of Dingman, 66 App. Div. 228; 72 Supp. 694; Matter of Marshing, N. Y. Law Journal, March 6, 1907). The appeal is sustained and the executors relieved from liability for tax on the transfer of the said portion of decedent's estate situated in Basel, Switzerland. The order fixing tax will be modified in accordance with the terms of this decision." Where, after a hearing upon proper notice to all parties interested, it is adjudged that an executor has been unable to collect the moneys for the payment of a tax imposed under the Transfer Tax Law from the transferred property, through the destruction of the property or obliteration of its value during the process of administration without fault or delinquency upon his part, the executor is not personally liable for the tax, and the provisions of this section with reference to his final accounting are not applicable. Matter of Meyer, 209 N. Y. 386. The mere fact that the beneficiaries are residents within the jurisdiction is not enough on which to predicate jurisdiction to assess the tax where neither the decedent nor the property are situated within the state. State v. Brim, 27 N. C. 300. Where the executrix has paid a tax to the federal gov ernment which was not a proper charge against the estate, this should not be surcharged against the executrix where it is admitted that the sum may be recovered back. Matter of Marx, 117 App. Div. 890; 103 Supp. 446. Personal liability extends to the beneficiaries who have received the property. Matter of McGee, N. Y. L. J., Feb. 7, 1913; aff. 160 App. Div. 890; 144 Supp. 1127. Succession of Pargoud, 13 La. Ann. 267. Wilhelmi v. Wade, 65 Mo. 39. Matter of Gihon, 169 N. Y. 443; 62 N. E. 561. Matter of Thomson, 12 Phila. (Pa.) 36. In re Lotzgesell, 62 Wash. 352; 113 Pac. 1105. United States v. Trucks, 27 Fed. 541. Montague v. State, 74 Md. 481, 487. Personal liability cannot extend to foreign executor. Goodrich v. Roch. Trust & S. D. Co., 173 App. Div. 577; 160 Supp. 454. PART VI-THE STATUTES A. General Review of the State Statutes. 1. Wherein They Agree. a. Transfers by Will and Intestacy. b. Transfers in Avoidance. c. Common Law Transfers. d. Powers of Appointment. e. Life Estates. f. Remainders. g. Executors and Their Duties. i. Valuation. j. Interest, Discount and Penalty. k. Banks and Trust Companies. 1. The Interest Taxed. 2. Wherein They Differ. a. Collaterals and Strangers Only. b. Nonresident Decedents. c. Tangibles and Intangibles. d. Reciprocal Statutes. e. Double Taxation. f. Questions of Residence. 3. As Producers of Revenue. a. The Rate. b. Exemptions. c. Facts as to Revenue. B. The Federal Statute. 1. History and Development. a. Revolutionary War Tax 1797 to 1802. b. Civil War Tax 1862 to 1870. c. Spanish War Tax 1898 to 1902. 2. Doubtful Constitutionality. 3. Provisions in Detail. a. The Rates. b. Exemptions and Deductions. c. Duties of Executors. d. Discount, Interest and Penalty. e. Treasury Department Rulings. 3. The Statute and Treasury Department Regulations. C. The New York Statute. 1. History and Development. b. List of the Statutes. c. The First Statutes Taxing Only Collaterals. b. The "Reign of Terror Act." c. A Radical Change in Theory as to the Transfer Taxed. d. The Amendments of 1911-Tangibles and Intangibles. e. The Tax Extended to Curtesy. f. Maximum and Minimum Rates. 3. The Problem as the Property of Nonresidents. a. The Previous Policy of the State. b. Real Estate of Corporations. c. Copartnership Assets. d. Exemptions. e. Joint Estates. f. Capital Invested in Business. g. Tenancies by the Entirety. h. Attempt to Define a "Resident." i. Computations. j. New Rates and Exemptions. k. Amendments of 1917. 4. Text of the New York Statute With Amendments to Date. |