Sec. 375. Care of Cemetery Lots.

A legacy for care of the testator's cemetery lot is generally held exempt as a part of the funeral expenses.1 A bequest of a sum in trust for keeping a burial lot in condition and repair is reasonably a part of the funeral expenses,2 but not where it is for the care of lots for himself and relatives. Legacies to a church 4 or to a cemetery association have been held not exempt as a part of the funeral expenses.5

1 In re Vinot, 7 N. Y. Suppl. 517. In re Liss, 39 Misc. Rep. 123, 78 N. Y. Suppl. 969.

2 In re Maverick, 135 N. Y. App. Div. 144, 119 N. Y. Suppl. 914.

The court distinguishes In re Gould, 156 N. Y. 423, 51 N. E. 287, In re McAvoy, 112 N. Y. App. Div. 377, 98 N. Y. Suppl. 437, as in the Gould case the testator had made a large bequest to his son as a reward for faithful services and in the McAvoy case the bequest was to pay for masses of others and the testator.

3 A legacy in trust the interest of which is to be devoted to the care of two cemetery lots is subject to the inheritance tax. It was contended that this bequest was to be considered as in the nature of funeral expenses, but the manifest intention of the testator was to provide a fund the income of which should be devoted to caring for the last resting place of all her relatives, and that this involved caring for her grave was a mere incident of the general purpose. In re Long, 22 Pa. Super. Ct. 370.

4 Where a will gave to the church two thousand dollars and in consideration of the bequest the testator desired that it shall keep in order in perpetuity his family burial lot, the legacy is subject to the payment of the collateral inheritance tax. This obligation does not exempt the legacy. The fact that the legacy is not a pure gratuity is not material. The court follows In re Seibert, 18 Wkly. Notes Cas. 276. In re Walter, 3 Pa. Co. Ct. 447.

5 A bequest to a cemetery association of a thousand dollars, the interest to be used for perpetual care of the testator's lot, is not part of the funeral expenses. The court holds there is a distinction between expenditures for a burial lot made by an executor in his discretion and a bequest made by a decedent in his last will to a certain beneficiary and for a certain specific purpose; and as cemetery associations are not specifically mentioned as being exempt the transfer is subject to tax. In re Fay, 62 Misc. 154, 116 N. Y. Suppl. 423.

A legacy for masses may be made directly to some religious organization, in which case it will be treated as a bequest for religious purposes,1 or it may be treated as a personal bequest to the priest who is to say the masses.2

1 In re Eppig, 62 Misc. 613, 118 N. Y. Suppl. 683.

The court holds that as the legacies are bequeathed directly to religious bodies, and as provision for masses is merely collateral and incidental, they are therefore exempt under section 221. In re Didion, 54 Misc. 201, 105 N. Y. Suppl. 924.

2 In re Brinkman, 38 Ohio Wkly. L. Bul. 304.

The court finds the bequest to be valid. That the beneficiary has designated as a wish on the part of the testatrix to have a particular priest celebrate the masses is equivalent to a direction and that therefore the bequest is subject to the inheritance tax. In re Black, 24 N. Y. St. 341, 5 N. Y. Suppl. 452, 1 Con. Surr. 477.

The will bequeathed to a priest, or in the event of his death to his successors, the sum of $800 to be used in saying eight hundred low masses, two hundred for each of four different persons. The court holds that this bequest is not specially exempted and is not a provision for funeral expenses, and that the low mass in no sense is a part of the funeral service even so far as such masses were said for the testator. In re McAvoy, 112 N. Y. App. Div. 377, 98 N. Y. Suppl. 437.

CHAPTER XLII.

ASSESSMENT OF TAX.

§ 377. Whether Assessment a Proper Function of Probate Court.

§ 378. Jurisdiction of Probate Courts Exclusive.

§ 379. Jurisdiction Affected by Right of Action by Beneficiary.

§ 387. Implied Power to Hold Provision of Will Void.

§ 388. Jurisdiction of Probate Courts over Estates of Non-Resident Decedents.

§ 389. Ancillary Administration in Case of Non-Resident.

§ 393. Power to Vacate Assessment.

§ 394. Proper Decree where Statute Misconstrued by Tax Officials. [Notice of assessment, see ante, s. 71.]

Sec. 377. Whether Assessment a Proper Function of Probate Court.

The jurisdiction of the probate court to assess and collect the tax has been unsuccessfully attacked as extra-judicial or beyond the proper functions of a probate court.

In re Wolfe 137 N. Y. 205, 33 N. E. 156, reversing 2 Connolly 600.

The imposition and collection of this tax are simply incidents in the final settlement and adjustment of estates, and therefore properly within the jurisdiction of surrogate's courts. In re McPherson, 104 N. Y. 306, 324, 10 N. E. 685, 58 Am. Rep. 502.

The ascertainment of the amount of the inheritance tax is a judicial question and being a necessary proceeding in the administration of the estate of deceased persons may be properly committed to the probate court. State v. Probate Court, 112 Minn. 279, 128 N. W. 18, 21.

[What court should compute tax, see ante, s. 325.]

Sec. 378.

Jurisdiction of Probate Courts Exclusive.

The special statutory authority to assess is commonly exclusive. In re Wolfe, 137 N. Y. 205, 33 N. E. 156, reversing 2 Connolly 600.

The jurisdiction given to the surrogate to determine and assess the inheritance tax is exclusive and cannot be exercised by the supreme court on a petition to construe a will. Weston v. Goodrich, 86 Hun 194, 33 N. Y. Suppl. 382.

As to collection in equity on distribution, see, however, Barret v. Continental Realty Co., 130 Ky. 109, 114 S. W. 750, more fully reported, post s. 380.

Action of court of domicil on distribution is binding on another court as to marshaling assets. In re Clark, 37 Wash. 671, 80 P. 267, reported more fully ante, s. 204, n. 8.

Sec. 379. Jurisdiction Affected by Right of Action by Beneficiary.

A statute giving the probate court jurisdiction of the settlement of inheritance taxes does not give it exclusive jurisdiction, but the legatee may sue the executor at law to recover his legacy.1 The Michigan statute of 1903, providing that it is the duty of the executor to collect the inheritance tax and that he shall not deliver any property subject to tax to any person until the tax assessed has been paid to him or to the county treasurer, does not prevent the institution of an action in ejectment by the devisees. No delivery of possession of real estate to the devisees was necessary. Under the will they took title subject to the right of the executor to take possession for the purposes of administration. The rights of the state are of no concern to the descendants.2

1Essex v. Brooks, 164 Mass. 79, 41 N. E. 119.

2 Weller v. Wheelock, 155 Mich. 698, 118 N. W. 609.

Sec. 380. In Equity on Distribution.

In a proceeding in equity to obtain distribution the court may require payment of the tax before distribution although the probate court is given special authority over matters of taxation.

Ky. St. 1906, c. 22, ss. 13, 14, 15, confer jurisdiction on the county court to determine questions arising in relation to the tax, but this jurisdiction is not exclusive when the jurisdiction of the court of equity is invoked to distribute an estate and the interest of each or any number of the heirs at law is subject to the inheritance or other tax. The court at the instance of the official representative of the commonwealth charged with the duty of collecting such tax may require its payment out of the share or shares of those chargeable with the tax before distributing the estate or funds among them, and thereby save both the tax collector and the heirs the trouble and expense of a separate and independent proceeding in the county court to compel the payment of the tax. The

circuit court, therefore, in requiring the payment of the tax before distribution did not exceed its jurisdiction. Barret v. Continental Realty Co., 130 Ky. 109, 114 S. W. 750.

Sec. 381. Power to Fix Liabilities and Apportion Tax.

The probate court may be empowered to determine what proportion of the tax shall be paid by each party interested,1 which power may be implied in the probate courts by general authority over the tax.2

1 Connell v. Crosby, 210 Ill. 380, 71 N. E. 350. Tyson v. State, 28 Md. 577. 2 The question as to the liability to pay a tax is a question affecting a devise, legacy or inheritance under the act, for if the tax is paid the devise, legacy or inheritance will be diminished by the payment. Callahan v. Woodbridge, 171 Mass. 595, 51 N. E. 176.

A provision of the inheritance tax law giving the probate court jurisdiction to hear and determine all questions relative to the inheritance tax, gives it jurisdiction over a petition praying the court to determine whether such a tax is payable and to fix its amount. Bradford v. Storey, 189 Mass. 104, 75 N. E. 256. "When we read all of the provisions of this act of 1885], it is perfectly apparent that a special system of taxation was created for the benefit of the state, with all the necessary machinery for its working; the control with respect to which was vested in the surrogate's court, with a jurisdiction exclusive in its nature. In the assessment of a tax upon property passing by will, or by the intestate law, the responsibility is imposed by the law upon the surrogate. He acts for the state and he is commanded to assess and fix the tax to which the property is liable. To comply with the command in section 13 of the act, in that respect, he must, necessarily, determine the question of liability to taxation, inasmuch as if no such liability exists he is without jurisdiction in the matter. When the machinery of this sytem of taxation is set in motion, under section 13 of the act, whether upon the application of interested parties, or upon his own motion, the surrogate, by force of its provisions, is at once invested with the office and the functions of an assessor for the state, whose duty it is to assess for its use a tax, and in whom not only by virtue of the office, but by the further provisions of section 15, inheres the authority, and upon whom rests the obligation, to determine the question of whether the property of the decedent, which passes to others, is subject or liable to taxation by the state. He must decide whether the property is taxable, for that fact lies at the foundation of his jurisdiction and is of the essence of his right to proceed with the assessment. Not all the property of decedents may be subject to the tax imposed by the first section, and what property shall be assessed for taxation is left, by the thirteenth section, for the surrogate to determine. To quote again the language, he 'shall assess and fix the cash values of all the estates, etc., and the tax to which the same is liable,' and this direction to assess involves the necessity, as well as the power, to determine the question of liability, as much as it does in the case of assessors of taxes in the general scheme of taxation.

"I can see no difference between the principle upon which the surrogate acts in proceeding to assess property for taxation under the act, and that upon which,