administrator of one Lucinda Taft presented to them an unverified claim in behalf of the estate he represented against the estate of Westurn, for six years' services of Lucinda Taft, as housekeeper, postmistress and manager of Westurn's business from March 1, 1882, to March 1, 1888, at $30 a month, amounting in the aggregate to $2,160. The claim. was not admitted by the Westurn administrators, but whether it has been formally rejected by them does not appear. On or about December 12, 1895, one Mary Clark presented to the surrogate a verified petition, upon which the surrogate on or about January 3, 1896, issued a citation to the administrators of Westurn, requiring them to show cause at the Surrogate's Court on the 12th day of January, 1896, why the letters of administration issued to them June 3, 1895, should not be revoked. The grounds of the application were set forth in the petition. The petition challenged the claims of the persons who had theretofore been recognized in the proceedings as the heirs and next of kin of the decedent Westurn, and asserted that they did not occupy that relation to him, and it is alleged that decedent Westurn was the illegitimate son of one Sally Burgess by Samuel Westurn, his father, and that Samuel Westurn, his reputed father, and his mother, Sally Burgess, never intermarried. It further alleged that Sally Burgess afterwards married, and that the petitioner and three other persons named were her children by such marriage, and the only heirs at law and next of kin of their illegitimate brother Samuel Westurn, the decedent. The administrators of Samuel Westurn, January 10, 1896, served notice of motion before the surrogate for January 20, 1896, to vacate and set aside the citation issued January 3, 1896, upon the ground that it improvidently issued, without sufficient proof. This notice came on to be heard on the day mentioned, and was dismissed by the surrogate upon the preliminary objection that the citation had not been served on the administrators of Westurn, and that they had no standing in court to make the motion. The administrators thereupon appealed to the Supreme Court from the order of dismissal, giving the requisite undertaking,

and, so far as appears, the appeal has not been heard or decided.

It is necessary to go back and state some other facts which bear upon the question involved in this appeal. July 6, 1895, a little more than a month after the issuing of the letters of administration on Westurn's estate, the surrogate, apparently on his own motion, appointed an appraiser to appraise the estate of Westurn under the Transfer Tax Law. The appraiser took evidence, and returned it with his report. He assessed the real estate of Westurn at $10,000, and his personal estate, less commissions of the administrators, at $7,820. He also separately valued and returned the share of each of the five nephews and nieces (appellants), and the tax thereon. He included among the personal assets of the decedent an alleged note of Lewis Burgess (the executor and beneficiary under the will) of $1,500, and which the appraiser valued, including interest, at $1,807.50. Burgess was examined under oath before the appraiser, and testified: "There was no note of $1,500 against me. It was paid." It also appeared that Burgess had not accounted for the estate which came to his hands as executor, and that a suit was pending against him, brought by the administrators in behalf of the estate for an accounting and to collect the $1,500 note. It appeared that outside of the note there was $800 belonging to the estate for which Burgess had not accounted. The appraiser rejected a claim by the next of kin to have the expenses they incurred in litigating the will deducted from the appraisal. The appraiser certified, so far as he had been able to ascertain, the estate owed no debts. The appraiser made his report to the surrogate, with the evidence, September 19, 1895, and on the same day the surrogate confirmed the report and assessed the tax in conformity therewith. Notice was given of the assessment order, and in due time, November 11, 1895, an appeal was taken by the nephews and nieces from the appraisal and assessment to the surrogate, setting forth in the notice of appeal various grounds of appeal, among others that the real estate was overvalued; that the personal estate of the

decedent had not been received by the administrators, and that litigation for its recovery was pending; that the time for the presentation of claims had not expired; that large expenses had been incurred in the litigation arising out of the probate of the will, which should have been deducted; that the Burgess note should not have been included in the amount, etc. The surrogate heard the appeal on the report of the referee and on additional evidence taken before him, and on February 24, 1896, confirmed the assessment and fixed the tax against the several interests in accordance with the appraiser's report, except that he modified the allowance of interest, as to which no question now arises. The surrogate refused to permit the appellants to file additional allegations on the hearing to the effect that since the appraisal, litigation had been commenced to determine who were the heirs and next of kin of Westurn, or in respect to the claim presented in behalf of the estate of Lucinda Taft. The surrogate, on the hearing referred to, refused to receive in evidence the petition of Mary Clark for the revocation of the letters of administration, or the other papers in connection therewith, to which reference has been made. The appellants appealed to the General Term from the order of the surrogate assessing the tax. The order was affirined by a divided court, and the appellants have brought the present appeal.

John C. Keeler and A. Armstrong, Jr., for appellants. Appellants should have been permitted to file additional allegations in respect to the claim of Mary Clark. (In re McPher son, 104 N. Y. 306.) The tax is not imposed upon the estate, but only upon so much of it as passes, and not until it does pass to the person or persons whose interests are subject to the (In re Howe, 112 N. Y. 100; In re Clark, 22 N. Y. S. R. 354; In re Curtis, 73 Hun, 185; 142 N. Y. 219; L. 1885, ch. 483; L. 1887, ch. 713; In re Cager, 111 N. Y. 343.) The taxes imposed by the Collateral Inheritance Tax Act are special, not general. (In re McPherson, 104 N. Y. 306.) The

tax.

rule is that special tax laws are to be construed strictly against the government and favorably to the taxpayers; that a citizen cannot be subjected to special burdens without clear warrant of law. (In re Enston, 113 N. Y. 174.) It is not now known whether any portion of the personal estate will ever pass to beneficiaries, or distributees, and it would be a travesty upon justice to impose this tax upon the appellants, when they may never receive a dollar of this estate. (In re Roosevelt, 143 N. Y. 120.)

J. A. Kellogg for respondent. The appraiser and surrogate very properly refused to deduct the expenses of the litigation between the various claimants to the property. (In re Swift, 137 N. Y. 77; In re Hoffman, 143 N. Y. 327; In re Seaman, 147 N. Y. 69; In re Hamilton, 148 N. Y. 310; In re Davis, 149 N. Y. 539; In re Millward, 6 Misc. Rep. 425; In re Merriam, 141 N. Y. 479; In re Vassar, 127 N. Y. 1; In re Sterling, 9 Misc. Rep. 224; In re Prime, 136 N. Y. 347; In re Fayerweather, 143 N. Y. 114.) The appraisal of the tax need not be deferred until the next of kin come into actual enjoyment of the estate. It may be very properly assessed while in the hands of the personal representatives. (In re Prime, 136 N. Y. 347; In re Fayerweather, 143 N. Y. 114; In re Davis, 149 N. Y. 539; L. 1887, ch. 713, §§ 4, 6, 7, 8, 10; In re Vassar, 127 N. Y. 1; In re Merriam, 141 N. Y. 479; In re Seaman, 147 N. Y. 69.) The fact that new litigation has sprung up since the appraisal was immaterial, and the surrogate very properly excluded evidence of such a fact. (L. 1887, ch. 713, § 12; L. 1892, ch. 399, § 6; L. 1896, ch. 908, § 225; In re Davis, 149 N. Y. 539.) The surrogate very properly refused to make deduction for claims which it was alleged had been or would be presented against the estate. (L. 1887, ch. 713, § 10; L. 1892, ch. 399, § 6; L. 1896, ch. 908, § 225; In re Davis, 149 N. Y. 539.) The surrogate properly refused to allow the amendment of the notice of appeal. (In re Davis, 149 N. Y. 539; Code Civ. Pro. 783, 784; Lavalle v. Skelly, 90 N. Y. 546.) The

N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

imposition of ten per cent interest after the appointment of the administrators was proper. (L. 1887, ch. 713, § 5; L. 1882, ch. 399, § 4.)

ANDREWS, Ch. J. The litigation over the probate of the will of the decedent was finally terminated by the decision of this court, May 21, 1895, in favor of the contestants. It was not until the final determination of the controversy, by the judgment of this court, that it could be known whether the property of the decedent passed under his will or as in case of intestacy, and, until this fact was ascertained, it was impracticable to proceed to fix the transfer tax under the act of 1892, or the prior statutes, since the ascertainment of the persons entitled to the property of a decedent must precede the imposition of any tax. This has been the uniform construction given by this court to the Transfer Tax Acts. It has been steadily maintained that the tax, while in a general sense a tax on the property of a decedent, is, in its essential nature, under the legislation on the subject, a tax on the right to succession to the property, imposed upon and collectible out of each specific share or interest given by will or derived under the Statutes of Descent or Distribution, and limited as to each share or interest to its value, with a superadded personal liability for the payment of the tax by the person taking the interest. The tax is computed, not on the aggregate valuation of the whole estate of the decedent considered as the unit for taxation, but on the value of the separate interests into which it is divided by the will or by the statute laws of the state, and is a charge against each share or interest according to its value, and against the person entitled thereto. The principle that the tax is a succession tax imposed as a burden on each person claiming succession, measured by the value of his interest, and collectible out of his interest only, was reaffirmed in the case In re Hoffman (143 N. Y. 327), arising after the passage of the Transfer Tax Act of 1892, and the court rejected the contention that the principle of construction to which we have adverted, established under