10 N.Y.S. 239, In re Vanderbilt's Estate
|Citation:||10 N.Y.S. 239|
|Opinion Judge:||Ransom, S.|
|Party Name:||In re Vanderbilt's Estate|
|Attorney:||Evarts, Choate & Beaman, for the Metropolitan Museum of Art and American Museum of Natural History. Cephas Brainerd and Timothy Davenport, for the Young Men's Christian Association. Edmund A. Baylies, for the Protestant Episcopal Missionary Society for Seamen. Miller, Peckham & Dixon, for St. Luk...|
|Case Date:||April 21, 1890|
Application to assess taxes on legacies given by the will of William H. Vanderbilt, deceased.
Laws N.Y. 1885, c. 483, entitled "An act to tax gifts, legacies," etc., provides (section 13) that, in order to fix the value of property of persons whose estates are subject to the payment of the tax, the surrogate, on the application of any interested party or on his own motion, shall appoint some competent person as appraiser as often as and when occasion may require, whose duty it shall be forthwith to give such notice by mail, and to such person as the surrogate may by order direct, of the time and place he will appraise such property, and at such time and place to appraise the same at its fair market value, and make a report thereof to the surrogate. Code Civil Proc. N.Y. § 384, provides: "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.
This is a proceeding brought by the district attorney to have the tax assessed and fixed upon certain cash legacies given to various charitable institutions by the will of William H. Vanderbilt, deceased. The said decedent also left legacies to certain individuals, upon which the tax was assessed and fixed by an order of the surrogate entered in June, 1888, confirming the report of the appraiser, filed in December, 1887. No notice of the appraisement was ever given to the comptroller or district attorney, or to the institutions now sought to be subjected to the tax. It is clear that each was entitled to such notice. Judge Earl, in Re McPherson, 104 N.Y. 306, 10 N.E. 685, says: "When the section provides that he shall designate by order to whom the notice is to be given, it is necessarily implied that he shall designate all the persons entitled to notice. If he should omit to do so, it would be an error, on account of which any tax imposed upon the person not notified or heard would be invalid as having been imposed without jurisdiction." It has been the uniform practice in this court for the district attorney to make the application himself on behalf of the state, and the statute seems to be clear upon that point. By section 17 of the act the comptroller is required, whenever he has reason to believe that any tax is due and unpaid, to notify the...
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