The statutes usually compel the executor to file an inventory. Such a statute confers no discretion upon the executors1 and the state has a right to an order that the executor's inventory be filed, and a judgment rendered in the absence of the inventory should be reversed even though it is claimed that the state obtained all necessary information by its examination of witnesses.2 The fact that the testator in his will directed his executors not to make any returns of his property cannot be permitted to have the effect of nullifying the statute.3

1See Hooper v. Bradford, 178 Mass. 95, 97, 59 N. E. 678.

'Where a party makes a motion that an inventory be filed in a tax inheritance case and the judge says that he will take the motion under advisement, but does not either then nor afterward make an order for the inventory but hears the case and enters final judgment without doing so, this amounts to a denial of the motion. People v. Sholem, 244 Ill. 502, 91 N. E. 704.

In re Morris, 138 N. C. 259, 50 S. E. 682.

Sec. 324. Of Property Outside State.

Under the Connecticut act of 1897 it was proper for the probate court to order the administrator to file an inventory and appraisal, including all the personal property wherever situated, although the administrator could not be held liable upon his final account for the value of personal property without the state of which it has been impossible for him to procure possession.

Appeal of Bridgeport Trust Co., 77 Conn. 657, 60 A. 662.

§ 335.

As of what Date Future Interests are Appraised. § 336. Reappraisal.

§ 344. Statute Providing no Method for Ascertaining Value of Life

Where the statute contains no express direction as to who shall compute the tax or the manner of computation, the duty is implied in the court of probate. The tax should be computed by the jurisdiction of the domicile notwithstanding ancillary probate may be also necessary as to property existing outside of the domicile.1 A provision that the controller shall countersign receipts for taxes gives him no authority to revise its amount.2

1 Appeal of Hopkins, 77 Conn. 644, 60 A. 657. 2 Becker v. Nye, Cal. App. 1908, 96 P. 333.

Where the sections of the inheritance tax law on appraisals are vague they may be read in view of the general law.

Commonwealth v. Gaulbert, 134 Ky. 157, 119 S. W. 779.

Sec. 327. Appointment of Appraisers.

The appointment may be made upon petition of an interested party,' as where it is the duty of the executor to apply for an appraisal, by a state officer or by the court, or without petition by the court of its own motion,5 and before the existence of claims against the estate has been ascertained." The appointment may be required by mandamus in a proper case. No notice of the appointment is necessary unless the statute requires it.8

1 Dixon v. Russell, 79 N. J. L. 490, 76 A. 982, reversing 78 N. J. L. 296, 73 A. 51.

An application of the state comptroller upon a verified petition setting forth every fact upon which the jurisdiction of the surrogate to act depended, made upon the information and belief, is a proper application to force the surrogate to appoint appraisers. Kelsey v. Church, 112 N. Y. App. Div. 408, 98 N. Y. Suppl. 535.

Not Judicial. The office of transfer tax appraiser is not judicial in character within the civil service law. Weeks v. Kraft, 129 N. Y. Suppl. 690.

2 Frazer v. People, 3 N. Y. Suppl. 134, 6 Dem. Surr. 174.

N. Y. St. 1896, c. 368, a. 10, ss. 229 and 234, provide for the appointment of tax appraisers and tax assistants by the comptroller of the state. The court holds that these sections invest the comptroller with absolute power of appointing and removing such official. The transfer tax assistant, however, is connected with the administration of the surrogate's office and the statute therefore plainly provides for the joint action of both officials in the selection and control of this clerk. The surrogate's power, however, is limited to a recommendation, and if the recommendation is not satisfactory the comptroller is not compelled to accept it and make the appointment and the position remains vacant. Duell v. Glynn, 191 N. Y. 357, 84 N. E. 282, affirming 122 N. Y. App. Div. 314, 56 Misc. 41, 106 N. Y. Suppl. 716.

'The court refers to the fact that the practice as to appraisal throughout the state has not been uniform, some judges taking the inventory and appraisement as the basis, while others cause an appraisement to be made under the inheritance tax law and still others resort to both methods. Cal. St. 1905, c. 314, s 5, provides for the ascertainment of the value of life estates and future estates by the appraiser to be appointed by the court, and the court of appeals expresses the opinion that it would be better to appoint appraisers in all cases. Becker v. Nye, Cal. App. 1908, 96 P. 333. See, however, In re Sondheim, 66 N. Y. Suppl. 726, under St 1900, c. 658, taking away the power of the surrogate to appoint appraisers.

'As the surrogate may of his own motion appoint an appraiser without petition his authority is not limited because the petition is presented by a competent

person with allegations made upon information and belief. In re O'Donohue, 44 N. Y. App. Div. 186, 60 N. Y. Suppl. 690.

In re Westurn, 152 N. Y. 93, 102, 46 N. E. 315, reversing 8 N. Y. App. Div. 59.

'Kelsey v. Church, 112 N. Y. App. Div. 408, 98 N. Y. Suppl. 535.

In re Belcher, 211 Pa. St. 615, 619, 61 A. 252.

Sec. 328. Appointed in what County.

Appraisers commonly must be appointed in the county where the decedent resided at his death,' although appraisal may be had where the larger part of his property is located.2

'Under the Pennsylvania statute of 1849, c. 369, s. 12, appraisers must be appointed by the register of the county in which letters testamentary are issued; and in that county all of the proceedings should be had to enforce the payment of the tax assessed, and so real estate in another county may be assessed under these proceedings. Stinger v. Commonwealth (2d), 26 Pa. St. (2 Casey) 429, 431. In re Dalrymple, 215 Pa. St. 367, 372, 64 A. 554.

Sec. 329. When Appointed.

Appraisal should be made promptly1 within the time allowed by

law.2

1In re Kingman, 220 Ill. 563, 77 N. E. 135.

Where the real estate of the testator consisted almost entirely of partnership property used in the prosecution of the lumbering and tannery business, and where the actual value of such real estate is dependent largely upon the manner in which it is controlled, it is impracticable to ascertain the value of such interests at present, but would seem to be a very proper case for postponing the assessment and collection of the tax to which the same might be subject until the parties entitled come into actual possession or enjoyment thereof. In re Wheeler, 1 Misc. Rep. 450, 22 N. Y. Suppl. 1075.

"The inheritance tax section in regard to appraisal of property should be read together with general law as to filing of an appraisal, and the court therefore finds that the appraisal required under the inheritance tax law with the names of the distributees or devisees should be filed within ninety days after qualification of the executor, and if the statement is not filed within this time the county court may upon its own motion or upon motion of any party interested in the estate take such proceeding as may be necessary to compel a statement to be filed, and after it has been filed to require if necessary that it shall be made sufficiently full and specific to furnish such information as will enable the county court to ascertain with reasonable certainty the character and value of the estate and the beneficiaries thereof. Commonwealth v. Gaulbert, 134 Ky. 157, 119 S. W. 779.

Sec. 330. Removal of Appraisers.

Appraisers may be subject to removal like other officials. The New York act of 1900, chapter 658, authorized the removal of a

state transfer tax appraiser by the state comptroller without a hearing and although there were no charges of incompetency or misconduct against him.

People v. Glynn, 128 N. Y. App. Div. 257, 112 N. Y. Suppl. 695.

Sec. 331. Notice.

Statutes commonly require notice of appraisals to parties, or to the public officials,' and where no notice was given remainder interests, as they could not be ascertained at the time of the appraisal, it may not be binding either on the remaindermen when they come into possession, or on the state,2 and appraisals made without such notice are defective. It may be sufficient that notice of the appraisal was given without notice of the order affirming it.1 Notice of the appointment of the appraiser and of the time and place of a hearing for the parties on appraisal and of the intended filing of the appraisement is unnecessary unless the statute requires it, although a right of appeal may imply notice."

1In re Fulton, 30 Misc. Rep. 70, 62 N. Y. Suppl. 995. In re Bolton, 35 Misc. Rep. 688, 72 N. Y. Suppl. 430. As to notice see ante, ss. 71, 72.

In re Naylor, 189 N. Y. 556, 82 N. E. 1129, affirming 120 N. Y. App. Div. 738, 105 N. Y. Suppl. 667.

'It appeared that no notice of the appraisement was given to an heir although a condition of affairs might arise in which she would be personally liable for the tax and could be compelled to pay it as a person who "had received the property transferred." The district attorney claimed that the tax must be paid and if any part of it is shown to be illegal it might be refunded. But the court holds that this would place an unjust burden upon the estate; that the proceeding is fatally defective and that therefore the tax assessed cannot be collected. The court set aside the report of the appraiser and allowed an application to be made for a new appraisal. In re Winter, 21 Misc. Rep. 552, 48 N. Y. Suppl. 1097.

*In re Miller, 110 N. Y. 216, 224, 18 N. E. 139, affirming 47 Hun 394. 'In re Belcher, 211 Pa. St. 615, 619, 61 A. 252.

In the appraisement the statute gives a right of appeal which necessarily implies notice, but there is no provision for a hearing except in the orphan's court upon appeal; and hence an appeal within thirty days of the notice of the filing of the appraisement was in time. In re Belcher, 211 Pa. St. 615, 619, 61 A. 252.

In proceedings for appraisal under the transfer tax act the will may be construed.

In re Peters, 69 N. Y. App. Div. 465, 74 N. Y. Suppl. 1028. That the tax cannot be assessed on proceedings to construe the will, see post, s. 378.