Opinion of the Court, per ANDREWS, Ch. J. [Vol. 152. the acts of 1885 and 1887, was not applicable to the act of 1892. The court has applied this rule of construction to cases of future contingent interests given by will, which might never become vested, and also to cases where, although there may have been a technical vesting of a future estate, the estate was liable to be defeated before it came into actual enjoyment. (Matter of Curtis, 142 N. Y. 219; Matter of Roosevelt, 143 id. 120; Matter of Hoffman, supra. See, also, In re Cager, 111 id. 343.) The delay, therefore, in fixing the tax in the present case, awaiting the result of the contest over the will, was inevitable, and in no way chargeable to the heirs or next of kin, whose rights were first judicially ascertained and finally settled by the judgment in this court declaring the will to be void. There was no delay thereafter in putting the estate in the course of settlement. Letters of administration were issued June 3, 1895. The surrogate, on July 6, 1895, on his own motion, appointed an appraiser. This was before the administrators had or could have advertised for the presentation of claims against the estate. It is insisted that the appointment of an appraiser and the fixing of the tax on September 19, 1895, was premature, and that, until an opportunity had been given to ascertain whether any claims would be presented, no appraisement could be made nor any tax assessed. There can be no doubt, we think, that, in ascertaining the value of the estate of the decedent and the value of the taxable interests, debts owing by him are to be deducted. They are charges which qualify the estate and are first to be paid before there can be any distribution of the personal estate to legatees or next of kin. The real estate is liable also to be sold for the payment of debts when the personal estate is insufficient for that purpose. The tax imposed by the act is upon "the transfer" of property by will or by the intestate laws of the state. (Act of 1895, 1.) Whether the transfer is by will or by operation of law, the real interest passing is what remains after payment of debts and other charges. It is plainly inferable from the sixth section of the act that the debts of the decedent are N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J. to be deducted in arriving at the valuation of the property and in fixing the tax. That section authorizes a proportionate amount of a tax to be refunded in case debts against the estate shall be proven after the tax shall have been paid. But it is the contention of the appellants that the surrogate had no power to appoint an appraiser or to fix the tax until the fact whether there were claims against the estate had been ascertained in the usual course. We find no such limitation in the language of the act. Section 11, which authorizes the appointment of an appraiser, contains no general limitation of time. The surrogate is authorized, upon the application of any interested party or upon his own motion, to appoint an appraiser "as often as and whenever occasion may require." It seems to be left to his sound discretion when the power shall be exercised, with a proviso, however, relating to future and contingent estates not important in the present case. When an estate is in the ordinary course of administration, it would seem to be prudent and reasonable for the surrogate to take notice of the statutory system for the settlement of estates, and to defer the appointment of an appraiser for the period necessary to enable the executor or administrator to advertise for claims and ascertain whether there are any creditors. But it has been held that the surrogate is not bound to await a final accounting before proceeding under the statute. (Matter of Vassar, 127 N. Y. 1.) In many cases of large estates it would be perfectly safe for an appraisal to proceed before an accounting and for the surrogate to fix the tax on legacies, or even on the residuary interests, reserving from the appraisal at that time a sum adequate to meet all probable debts and charges and leaving the adjustment of the tax on the part reserved for a future occasion. The time when the surrogate shall proceed, where the interests are ascertainable and certain, must, we think, in general, be left to his sound judgment. In this case the claim presented seems to be of a doubtful character, and if it should be established after the estate shall have been distributed and the tax paid, the interests of the distributees are fairly pro Opinion of the Court, per ANDREWS, Ch. J. [Vol. 152. tected by the sixth section of the act, to which reference has been made. In the valuation of the estate the surrogate deducted a sum for the commissions of the administrators. The principle that, in administering the statute, debts, commissions and expenses of administration should be deducted in ascertaining taxable values, accords with the general practice and is permitted by a just construction of the law. (See sections 6, 8. See, also, In re Lines' Estate, 155 Pa. St. 379.) The appellants further insist that the surrogate erred in refusing to deduct from the valuation of the estate the sum expended by them in the litigation over the will. We think the surrogate properly disallowed this item. It was not a claim existing against the decedent or his property. The tax imposed by the statute is upon the interests transferred by will or under the intestate law of the state. The devolution of the property and the right of the state have their origin at the same moment of time. The ascertainment of the value of the taxable interest and the fixing of the tax necessarily takes place subsequent to the death. But the guide is the value at the time of the death, when the interests were acquired. The fact that the appellants were put to expense in asserting their rights and were embroiled in expensive litigation to obtain them, was their misfortune. It did not diminish the value of the interests which devolved upon them on Westurn's death. It was a loss, but a loss to their general estate. It did not prevent them receiving the whole interest transmitted to them. The fact that the court charged certain costs and allowances in their favor upon the estate did not change the situation. It was practically a charge upon their own property for the benefit of their attorneys. It was error for the surrogate to include in the appraisement the amount of the note of Lewis Burgess. He testified in the proceedings before the appraiser that the note had been paid. The administrators had brought suit against him to recover the note as an asset of the estate, and the litigation was pending undetermined both at the time of the appraisal and of the appeal to the surrogate from the valuation and N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J. assessment of the tax, and it depended upon the result of that litigation whether Burgess owed the estate the amount of the note. If the note had been paid, it was not taxable as an asset. It was, we think, the plain duty of the surrogate to have excluded this claim from valuation at the time, reserving it for future appraisement in case the administrators succeeded in collecting it. We are also of opinion that the surrogate should have permitted the appellants to have filed the additional allegations in respect to the claim of Mary Clark, that she and her brothers and sisters were the sole heirs and next of kin of Westurn, and to have received and considered the proofs offered to show that a litigation had been commenced in the Surrogate's Court to revoke the letters of administration granted June 3, 1895, based on this claim. It is not suggested that the proceeding was collusive. The application to the surrogate in behalf of the persons contesting the claim of the appellants to be the heirs and next of kin of Westurn, was based upon positive statements under oath. If their claim is well founded it is manifest that the tax could not be assessed against the appellants. They would in the case supposed have no taxable interest. The conflicting claims of the appellants and of Mary Clark and those she represented involved a controversy which affected the title to the whole estate. The surrogate should either have postponed the appraisement until the litigation was determined, or at least should have received and considered the evidence. It is not necessary now to determine, whether as incident to his jurisdiction in tax proceedings under the statute, he could determine which set of claimants was entitled to the estate. It is claimed that the surrogate properly refused to permit the new allegations based on the claim of Mary Clark to be filed, since the sixty days had expired during which an appeal must be taken, and for the further reason that the statute requires the notice of appeal to specify the grounds of appeal, and that there was no reference in the notice served by the appellants to the claim of Mary Clark. The appeal to the surrogate, given by section 152 104 13 of the act of 1892, is in the nature of an application for a rehearing upon which new evidence may be taken, bearing upon the questions involved. The requirement that the notice of appeal shall specify the grounds of appeal, implies that in the prior proceedings, questions had been raised and decided, upon which error could be assigned. But the new fact in the case, viz., the claim of Mary Clark, was not disclosed until after the appeal was taken, and after the expiration of sixty days from September 19, 1895, when the original order of the surrogate fixing the tax was made. We think the statute ought to be construed so as to permit the raising upon an appeal, of a question which did not enter into the original determination, and which was first made known after the appeal had been taken, and after the expiration of the sixty days. The surrogate had jurisdiction of the appeal by the notice actually given, and it would be an unwise construction of the act to limit the hearing so as to exclude the consideration of a new question subsequently arising, on the ground that it was not specified in the notice of appeal. The case In re Davis (149 N. Y. 540) did not involve the question here presented. We think the order of the surrogate should be reversed. Order reversed. 152 565 152 104 154 548 152 104 170 1129 ANDREW COSGRIFF et al., Respondents, v. WILSON P. Foss et el., Respondents, and WILLIAM DEWEY, Appellant. 1. PARTITION ALLOWANCE FOR IMPROVEMENTS. A tenant in common, who is also a lessee of his cotenant, cannot be allowed in partition for improvements made upon the property in the course of his tenancy, which enhanced its value and were made with the knowledge but without the consent of the cotenant, when the effect of such improvements was not to protect or preserve the property, but to aid the tenant in carrying on a business then prosecuted by him upon the premises, the increased income from which was not shared with the cotenant. 2. IMPROVEMENTS - DISTINGUISHED FROM REPAIRS-ALLOWANCE FOR. Contribution between cotenants for improvements, as distinguished from |