Motion — Blackstone v. Miller

Supreme Court brief1903

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Text

7.:42%9, eters tate

napreme Court of the i ita =

ete ec’,

IsaBeELLaA F. BLacksTONE, individu-

ally d as executrix of th last

“eg se of os

| 70, 1Go2.,

October Term, 1902.

No. 423.

F otif i in he

AGAINST

Naraan L. Minter, Comptroller of

the State of New York,

Defendant in Error.

Writ of Error to the Surrogates’ Court of

the County of New York.

MOTION TO ADVANCE.

And now comes the plaintiff in error and moves this

Honorable Court to advance this cause upon the

docket, and to hear it at as early a day as the conveni-

ence of the Court will permit. The reasons for this

application are as follows :

This case presents questions of general public interest

and of great importance, and their prompt and authori-

tative decision is important not only to the State of

New York and to the plaintiff in error, but to the

various States in the Union which have enacted suc-

cession, inheritance or transfer taxes, and to the

citizens of said States. The matter involved is the

liability of the plaintiff in error, a citizen and resident

of the State of Illinois, and the residuary legatee and sole

executrix of her husband, Timothy B. Blackstone, who

died May 26, 1900, a citizen and resident of said State, to

pay $77,536.09 which has been assessed against her as an

9 ?

inheritance or transfer tax by the State of New York

upon $4,854,127.96 of indebtedness due to said

Timothy B. Blackstone at the time of hia death from a

trugt company and a firm of ‘private bankers* in the

City of New York.

In opposition to this assessment the plaintiff in

error claims: :

1. That these debts were intangible and were in

no sense property within the State of New York

within the meaning of the New York Tax Law or

the principles of general jurisprudence ;

2. That if such indebtedness was property with-

in that State, it was only transitorily there, and

would not be subject to taxation ;

3. That an inheritance tax had already been as-

sessed upon and collected on this indebtedness by

the State of Illinois ; and

4. That the imposition of any further tax by the

State of New York would be in violation of the

Constitution of the United States.

The Surrogates’ Court of the County of New York,

where the matter originated, determined, after con-

sideration of the case, that the indebtedness in ques-

tion was not subject to a tax, and entered an order de-

claring its exemption (35 Miscellaneous Rep. N. Y.,

585). The representative of the State appealed from

this order to the Appellate Division of the Supreme

Court, where the order of the Surrogates’ Court was re-

versed upon the ground that the Court of Appeals of

New York had already decided these questions ad-

versely to the plaintiff in error in the case of

the Matter of Houdayer, 150 N. Y., 39 (69 App.

Div., 127). The plaintiff in error then appealed

from the decision of the Appellate Division of the Su-

preme Court to the Court of Appeals, where the

opinion of the Appellate Division was affirmed on the

authority of the Houdayer case, O’Brirn, J., dissenting

(171 N. Y., 682). The plaintiff in error has sued out

this writ.

33260

OU &

3

The decision of the Court of Appeals in the Matter

of Houdayer, supra, was sought to be reviewed in this

court, but the writ of error was dismissed because of

the failure of the plaintiff in error to raise the constitu-

tional questions in the courts below (Scudder v. Coler,

175 U. 8. 32).

The questions above-named have never been finally

determined in any court of the United States, and until

they are determined by this Court will be a constant

source of embarrassment to the owners of property and

to the financial administration of various States in the

Union. In the State of New York alone property to

the amount of millions of dollars will, it is believed, be

affected by the determination of this case.

In Orr v. Gilman, 183 U. S., 278, which was argued

at the last term of this Court, and which involved

another phase of the New York transfer tax law, the

Court granted a motion to advance the cause, and in

the opinion of counsel, the reasons for a similar dispo-

sition of this cause are even more cogent.

Under these circumstances counsel respectfully

suggests that the questions of constitutional law in-

volved in this case should be determined in all their

aspects as speedily as the convenience of this Honor-

able Court will permit.

Dated October 20th, 1902.

Respectfully submitted,

Aectworol Velolo-~—

Counsel for Plaintiff in Error.

I hereby waive Pedjce of the foregoing motion to ad-

vance, and join in the apjgation therefor.

Counsel for Defendant in Error.

[21256]

Si Bee 4

- ~~ §

Supreme Court of the United States.

IsaBELLA F. BLACKSTONE, individu-

ally and as executrix of the last

will and testament of Timothy

B. Blackstone, deceased,

Plaintiff in Error,

AGAINST oe

Naraan L. Mrizer, Comptroller of

the State of New York, and

Epwarp M. Grovr, Comptroller

of the City of New York,

Defendants in Error.

Writ of Error to the Surrogate’s Court of

the County of New York.

NOTICE OF MOTION TO ADVANCE.

Sir:

PLEASE TAKE NOTICE that the annexed motion to ad-

vance this cause will be brought on for hearing before

the Justices of this Honorable Court, at a term

thereof, to be held at the Capitol in the City of Wash-

ington, on the 10th day of November, 1902, at twelve

o'clock, noon.

Dated November 3rd, 1902.

Yours, &c.,

\N

Counsel for Plaintiff,in Error.

To Jutivus OrrenBac#, Esq.,

Solicitor and Counsel for Defendants in Error.

ip

of? £35.

Supreme Court of the United States.

<> O———

IsABELLA F. BLAcKSTONE, individu-

ally and as Executrix of the last

will and testament of Timothy

B. Blackstone, deceased,

Plaintiff in Error, ea ey

No. 423.

AGAINST

NaTtHAN L. Minter, Comptroller of

the State of New York,

Defendant in Error.

Opposition to the Motion to Advance.

—————_o 2 eo

Now comes the defendants in error and oppose the ap-

plication made by the plaintiff in error to advance this

case upon the docket. The grounds of such opposition

are as follows: This appeal is not entitled to be advanced

under section 949 of the Revised Statutes of the United

States or Rule 26 of this Court. The State or its repre-

sentatives (defendants in error) are not applying for the

advancement of this cause on the grounds that it is to

collect a revenue due to the State, but, on the contrary,

are opposing such application. There are no peculiar

features in this appeal which entitle it to a preference.

2

The opposition of the defendants in error is further based

upon the ground that there is an application pending to

require the plaintiff in error to increase his bond of $1,000

given as a supersedeas to a decree for the sum of $77,500,

and accrued penalty thereon amounting to about the sum

of $20,000, which application was before Mr. Justice Peck-

ham this day, and which application the solicitor of the

defendants in error was directed to present to this court

in bane by the said justice on an order to show cause to

be granted therefor by Mr. Justice Peckham, returnable

on the 17th day of November next.

In order to protect the interests of the defendants in

error and the State of New York it is important that the

questions of the increase bond should be disposed of be-

fore this motion to advance is decided, as the decision of

the motion to increase the bond may result in an aban-

donment of this appeal by the plaintiff in error, or failing

to comply with an order of this court in a dismissal thereof.

Dated November 10, 1902.

Respectfully submitted,

JULIUS OFFENBACH,

Counsel for Defendants in Error.

*6é]

e>eop Je

mF

oe

Phe Supreme Court U.

f° FILED

C- rs 42, NOV 17 1902

JAMES_H. McKENNEY,

J Clerk,

C | fou Q Mer Gonal .

Supreme Court of the United States.

r

SS hace ye es /Oo 2.

IsABELLA F. BLACKSTONE, individu-

ally and as Executrix of the last

will and testament of Timothy

B. Blackstone, deceased,

Plaintiff in Error,

October Term, 10902.

ore No. 423.

Natuan L. Mi_ver, Comptroller of

the State of New York, and Ep-

warp M. Grout, Comptroller of

the City of New York,

Defendants in Error.

--e

MOTION FOR A NEW BOND.

-_-

Now come the defendants in error and move the Court

that the plaintiff in error be required to file a new bond.

JULIUS OFFENBACH,

Counsel for Defendants in Error.

am eo U.S.

A? 4283. NOV 15 1902

Grote a0 fo eur Biasicd bel,

ates -ates., 6, Po.

SUPREME COURT OF THE UNITED STATES.

IsABELLA F. BiacksToNE, indi-

vidually and as Executrix of

the last Will and Testament of

Timothy B. Blackstone, de-

ceased,

Plaintiff in Error,

October Term,

AGAINST 1902.

No 423.

Natnan L. MILiEer, Comptroller

of the State of New York, and

Epwarp M. Grout, Comptroller

of the City of New York,

Defendants in Error.

On the record herein, and on the annexed affida-

vit of Julius offenbach, verified on the 12th day of

November, 1902, and all the proceedings had

herein, and

On motion of Mr. Julius Offenbach, solicitor and

of counsel for the defendants in error above named,

it is

OrDERED, that the plaintiff in error appear be-

fore the Supreme Court at the Capitol in the City

of Washington, District of Columbia, on the 17th

day of November, 1902, at 12 o'clock noon on that

day, and show cause why the plaintiff in error

2

should not be required to file a bond or other

security herein in the sum of one hundred and

twenty-five thousand dollars to secure damages and

costs herein, or why, in default thereof, the

approval of the bond heretofore filed herein by the

plaintiff in error should not be withdrawn and can.

celled, and all proceedings based upon said bond

vacated, and why the defendants in error should

not have such other and further relief in the prem-

ises as may be just; and it is further

ORDERED, that service hereof on the solicitor for

the plaintiff in error on or before November 14th,

1902, shall be sufficient,

Dated at Washington, District of Columbia, No-

vember 13th, 1902.

R. W. PErckHam,

Asso. Jus. Sup. Ct. U. S.

3

SUPREME COURT OF THE UNITED STATES.

)

IsBELLA F. BLacksToN:g, individ-

ually and as Executrix of the

Last Will and Testament of |

Timothy B. Blackstone, de- !

ceased,

Plaintiff in Error,

AGAINST

NatHan L. MILLER, Comptroller

of the State of New York, and

EpwarpD M. Grout, Comptrol-

ler of the City of New York,

Defendants in Error.

ES EE eA

StaTE OF New York, ies

County of New York, \ ~~""

JULIUS OFFENBACH, being duly sworn, says:

That he is solicitor for the defendants in error

above named. This isa proceeding to appraise the

property of Timothy B. Blackstone, deceased, the

transfer of part of which was subject to tax under

the Transfer Tax Laws of the State of New York

(Chap. 908, L. 1896) and to fix and determine the

amount of the tax thereon. The proceeding

originated in the Surrogate’s Court in and for the

County of New York, in which Court an order was

duly entered on the 20th day of February, 1901,

determining the value of said property subject to

tax by the State of New York at $4,553,609.58,

and fixing the tax upon the several transfers

thereof at the total sam of seventy-seven thousand

C

4

five hundred and thirty-six dollars. After sundry

appeals, the Court of Appeals of the State of New

York, on or about the 24th day of June, 1909,

entered an order affirming the order of the Ap-

pellate Division of the Supreme Court of said State,

which had affirmed said order of said Surrogate’s

Court; and to review said order of said Court

of Appeals the plaintiff in error above named

has sued out a writ of error to the Supreme

Court of the United States Under the Tax

Law of the State of New York in conformity with

the provisions of which said proceeding has been

conducted and said tax determined, a penalty of

ten per cent. per annum is imposed for the non-

payment of said tax from the 26th day of May,

1900, on which date the decedent whose estate is

here involved died ; and the full amount of said

tax and penalty is at this date over ninety-six

thousand five hundred dollars.

To collect said tax, the Tax Laws of the State of

New York provide for a summary proceeding at

the instance of the District Attorney for the

County of New York, resulting in a judgment,

which judgment is enforcible against any property

belonging to the estate of decedent found within

the State of New York. In connection with her

writ of error herein, the plaintiff in error above

named filed a bond in the sum of one thousand

dollars only, in form to secure damages and costs,

thus staying proceedings upon said order of the

Court of Appeals, and acting as a supersedeas

thereof. Said bond was fixed at said amount ez

parte, and deponent believes that the same was

fixed at so small an amount inadvertently, and

without knowledge that the effect of said bond will

be to stay proceedings to collect said tax and

penalty thereon, as above set forth, which amount

will be largely increased before this writ of error

i)

can be heard by the Supreme Court of the United

States. Deponent was informed by the solicitor

for the plaintiff in error while this proceeding was

pending in the Court of Appeals, that the property

of said decedent, upon the transfer of which the

aforesaid tax has been levied, had been re-

moved since this proceeding was instituted,

from the State of New York. In deponent's

opinion it is indispensable for the protection of the

rights of the State of New York, and of the de-

fendants in enor, speedily to prosecute proceed-

ings to convert said order of the Court of Appeals

into a judgment and to enforce and collect the

same. In deponent’s opinion the amount of said

bond as filed by plaintiff in error is totally. insuffi-

cient adequately to secure the amount involved in

this proceeding and penalty thereon, which is not

otherwise secured, and costs.

On October 30th, 1902, Mr. Justice Peckham, on

deponent’s application, granted an order requiring

the plaintiff-in-error to show cause why he should

not be required to file a bond or other security

herein in he sum of $125,000, to secure damages

and costs, or why in default thereof the approval

of the bond heretotore filed herein by the plaintiff-

in-error should not be withdrawn and canceled.

On the return of said order, said application was

not determined, but said Justice directed the same

to be brought before the Supreme Court in banc,

on an order to show cause.

WHEREFORE, the annexed order is prayed, for

which no previous application has been made, ex-

cept as aforesaid.

JULIUS OFFENBACH.

Subscribed and sworn to be- )

fore me at the County of |

New York, this 12th day }

of November, Nineteen |

hundred and two.

Harry MAok,

Notary Public,

[SEAL. } N. Y. County.

Dae: Suprome Courtdb Sa @ 6 Ui

ILED

if? 4y.® 3, NOV 17 1902

JAMES H. McKENNEY,

/ ny a Ve,

Susreme Court of the United States.

i ot Tou. Ys i o2,

ISABELLA F. BLACKSTONE, individually and as Executrix of

the Last Will and Testament of Timothy B. Blackstone, deceased,

Plaintiff in Error,

d

against

NATHAN L. MILLER, Comptroller of the State of New York, and

EDWARD M. GROUT, Comptroller of the City of New York,

Defendants in Error.

OCTOBER TERM, 1902.

No. 423.

Affidavit and Return in opposition to Motion

to Increase Penalty of Appeal Bond. .

EDWARD W. SHELDON,

ROBERT WILKINSON,

Of Counsel for Plaintiff in Error.

Cc. G. Burgoyne, Walker and Centre Streets. N. Y

Supreme Court of the United States.

IsaBELLA F. BLACKSTONE, individu-

ally and as Executrix of the Last

Will and Testament of Timothy

B. Blackstone, deceased,

Plaintiff in Error,

October Term,

1902.

AGAINST )

No. 423.

Naroan L. Miuier, Comptroller of

the State of New York, and Ep-

warp M. Grout, Comptroller of

the City of New York,

Defendants in Error.

Return on Behalf of Plaintiff in Error in

Opposition to Motion to Increase Pen-

alty of Appeal Bond.

Now comes the plaintiff in error pursuant to an or-

der of the Honorable Rurus W. PEcKHAM, Associate

Justice, dated November 13th, 1902, and for cause why

the prayer of the: defendants in error should not be

granted and why the plaintiff in error should not be

required to file a-bond or other security herein in the

sum of one hundred and twenty-five thousand dol-

lars to secure damages and costs, or why, in default

thereof, the approval of the bond heretofore filed

herein should not be withdrawn and can-

celled, and all proceedings based upon said bond

vacated, respectfully shows to the Court :

3327

I. The supersedeas bond for 81,000 ap-

proved August 4, 1902, and filed herein

on August 15, 1902, is sufficient in amount

and complies with the rules and practice of

this Court.

Under Rule 29 of this Court “ Supersedeas bonds in

the circuit court must be taken, with good and sufi-

cient surety, that the plaintiff in error or appellant

shall prosecute his writ or appeal to effect and an-

swer all damages and costs if he fail to make his plea

good. Such indemnity, where the judgment or decree

is for the recovery of money not otherwise secured,

must be for the whole amount of the judgment or de-

cree, including ‘just damages for delay,’ and costs and

interest on the appeal.”

“Every justice or judge signing a citation on any

writ of error, shall, except in cases brought up by the

United States or by direction of any department of the

government, take good and sufficient security that the

plaintiff in error or the appellant shall prosecute his

writ to effect, and, if he fail to make his plea good,

shall answer all damages and costs, where the writ

is a supersedeas, or all costs only where it is not a

supersedeas as aforesaid.”

R. 8., 2d Ed., Sec. 1000.

“Writs of error from the Supreme Court to a

State Court in cases authorized by law, shall be issued

in the same manner and under the same regulations,

and shall have the same effect as if the judgment or

decree complained of had been rendered or passed in a

court of the United States.”

R. 8., 2d Ed., Sec. 1003.

In the present case, the writ of error is issued to

review the following order of the Surrogate’s Court for

the County of New York :

“ At a Special Term of the Surrogates’

Court held in and for the County

of New York, at the County

Court House in the Borough of

Manhattan, City of New York,

on the 30th day of June, 1902.

Present, Hon. ABNER C. Tuomas, Surrogate.

In THE MATTER

the Appraisal under the Act in rela- {

tion to Taxable Transfers of prop-

erty, of the property of Timoruy

B. BiacksTone, deceased.

OF

“

IsapeLta F. BLacksTONE, individually and as

Executrix of the last will and testament of Tim-

othy B. Blackstone, deceased, having duly ap-

pealed to the Court of Appeuls from the order

herein of the Appellate Division of the Supreme

Court for the First Judicial Department, entered

in the office of the Clerk of said Court on the

first day of March, 1902, which reversed the order

herein of the Surrogates’ Court of the County of

New York, entered in the office of the Clerk of

said Surrogates’ Court on the 26th day of July,

1901, and affirmed the order herein of said Sur-

rogates’ Court entered in the office of the Clerk

thereof on the 20th day of February 1901, and

the Court of Appeals having sent down the

record of said Appeal and the proceedings in

said Court to the Surrogates’ Court of New York

County, here to be proceeded upon according

see

4

to law, whereby it appears that upon said

appeal the Court of Appeals ordered that said

order of the Appellate Division of the Supreme

Court, First Department herein appealed from

should be affirmed with costs of said appeal to

the respondent, the Comptroller of the City of

New York.

Now, on reading and filing the remittitur of the

Court of Appeals herein, and the costs of the re-

spondent on said appeal having been duly taxed

at the sum of $139.68 dollars, and on motion of

Julius Offenbach, attorney for the Comptrollers

of the State and City of New York, it is

Ordered, that said order of this Court of Appeals

be, and the same hereby is, made the order of this

Coart, and that the order herein of the Appellate

Division of the Supreme Court, First Department,

appealed from as aforesaid, be, and the same

hereby is, affirmed, with One hundred and thirty-

nine 68/100 Dollars costs of said appeal, to the

Comptroller of the City of New York.”

ABNER C. THomas,

Surrogate.

_—_—_——

The order of the Appellate Division, which was thus

affirmed, read as follows :

“At a Stated Term of the Appellate

Division of the Supreme Court,

First Department, held at the

Appellate Division Court House,

in the County of New York,

on the 7th day of February,

1902.

Present :

Hon. Cuartes H. Van Brunt, P. J.

Hon. Moraan J. O’Brien,

Hon. George L. Incranam, bay :

Hon. Epwarp W. Harton,

5

OF

The Appraisal under the Act in Re-

lation to Taxable Transfers of

Property, of the property of |

Timotay B. BLACKSTONE, deceased, |

CoMPTROLLER OF THE Crry or NEw

York,

Appellant,

TsaBELLA F. BLACKSTONE, individ-

ally and as Executrix of the Last

Will and Testament of Timothy

B. Blackstone, deceased,

Respondent.

ed

An appeal having been duly taken to the Ap-

pellate Division of the Supreme Court, First

Department, in the name of the Comptroller of

the City of New York, from the order of the Sur-

rogate’s Court of the County of New York entered

herein and filed in the Office of the Clerk of the

said Surrogate’s Court on the 26th day of July,

1901, which reversed the order of said Surrogate’s

Court entered in the office of the Clerk thereof

on the 20th day of February, 1901, on the report

of Charles B. Page, appraiser herein, and declared

transfers of the property of the decedent above

named exempt from any transfer tax under the

laws of the State of New York, and said appeal

duly coming on to be heard,

And after hearing Thomas Penney, of counsel

for the Comptroller of the City of New York, in

support of said appeal, and Edward W. Sheldon,

6

of counsel for respondent in opposition thereto,

and due deliberation having been had,

On motion of Julius Offenbach, attorney for

appellant, it is

Ordered, that the order of the Surrogate’s Court

of the County of New York appealed from, be,

and the same hereby is reversed, with ten dollars

costs and disbursements to the appellant, and

the order of said Surrogate’s Court entered in

the office of the Clerk thereof on the 20th day

of February, 1901, be, and the same hereby is,

affirmed.”

The order of the Surrogate’s Court thus reversed

was in this form :—

“At a Surrogate’s Court held in and

for the County of New York, at

the County Court House in the

County of New York, on the

26th day of July, 1901.

Present—The Honoraste Frank T. Frrzuer-

ALD, Surrogate.

In THE Marrer

OF

The Appraisal under the Act inf

relation to Taxable Transfers of

Property, of the property of Tim-

oTay B. BiaoxsTone, deceased.

;

The Comptroller of the City of New York

having heretofore filed his petition herein, dated

November 10, 1900, for the appointment of some

competent person to appraise the property passing

7

by the will of Timothy B. Blackstone, the decedent

above named, or such part thereof as might be

subject to taxation under the laws of the State of

New York in relation to taxable transfers of prop-

erty, and an order having on November 12, 1900,

been entered, directing Charles B. Page to fix the

fair market value at the time of the transfer of the

property which was of the above-named decedent

and which was subject to the payment of any tax

imposed by Article X of Chapter 908 of the Laws

of 1896, and the acts amendatory thereof and sup-

plemental thereto ; and the said appraiser having

on February 19, 1901, filed his report herein ; and

an order having thereapon been entered herein

February 20, 1901, declaring that the cash value

of the property passing by the will of said de-

cedent to the legatees thereunder was as follows,

viz: Ellen B. Plant, niece, $25,000 ; William L.

Harrison, grandnephew, $30,000 ; Paul Harrison,

grandnephew, $30,000 ; Gertrude Harrison, grand-

niece, $20,000 ; George Blackstone, nephew, $50,-

000; Adelaide Blackstone, niece, $20,000; Emma

Pond, niece, $20,000 ; William N. Blackstone,

nephew, $250,000; Harriet B. Camp, niece, $25,-

000; Frances Ella Huntington, niece, $25,000 ;

Lorenzo Blackstone, grandnephew, $25,000 ; Mor-

ton F. Plant, nephew, $10,000 ; William J. Bryson,

stranger, $15,000 ; Susan E. Jones, stranger,

$5,000 ; James Blackstone Memorial Library As-

sociation of Branford, Connecticut, $100,000; Art

Institute of Chicago, $25,000 ; Chicago Orphan

Asylum, $25,000 ; Home of the Friendless, Chicago,

$25,000 ; St. Luke's Hospital, Chicago, $25,000 ;

Passavant Memorial Hospital, Chicago, $25,000 ;

Chicago Relief and Aid Society, Chicago, $25,000 ;

and Isabella F. Blackstone, widow, $3,753,609.58,

and that the tax to which said legacies were liable

on such transfer was at the rate of five per cent.

of such value upon the legacies to said collateral

relatives and strangers, and one per cent. upon the

legacy to said widow ; and said Isabella F. Black-

8

stone, individually and as executrix of the last will

and testament of Timothy B. Blackstone, having

appealed to the Surrogates of the County of New

York from said order of February 20, 1901; now

upon reading and filing the petition for the

appointment of said appraiser, the oath of said

appraiser, the notice of appraisal, the notice of

appearance and protest of said Isabella F. Black-

stone, the report of said appraiser, the testimony

taken before said appraiser, the answer of said

Isabella F. Blackstone, individually and as

executrix of the last will and testament of Timothy

B. Blackstone, deceased, to said petition, with the

exhibits annexed to said answer, the affidavit of

Henry L. Thornell, verified J anuary 10th, 1901,

the affidavits of William J. Bryson and Albert

Wick, verified January 9th, 1901, the notice of en-

try of order assessing tax, and the order assessing

tax, and the notice of appeal therefrom, and after

hearing Edward W. Sheldon, Esq., of counsel for

Isabella F. Blackstone, individually and as execu-

trix of Timothy B. Blackstone, deceased, and

Julius Offenbach, Esq., of counsel for the Comp-

troller of the City of New York, respondent ; now

on motion of Edward W. Sheldon, attorney for

Isabella F. Blackstone, individually and as execu-

trix, &c., of Timothy B. Blackstone, deceased, it is

“ Ordered that the order entered herein Febru-

ary 20, 1901, be and the same hereby is reversed,

and said transfers are, and each of them is hereby,

declared to be exempt from any transfer tax under

the laws of the State of New York.”

This Surrogate’s order of February 20, 1901, had

been entered as of course upon the appraiser's report,

and read as follows :

“ At a Surrogate’s Court, held in and

for the County of New York, at

the County Court House, in the

County of New York, on the

20th day of February, 1901.

9

Present—The HonoraBLe ABNER OC. THOMAS,

Surrogate.

In the Matter

of

The Appraisal Under the Act

in Relation to taxable Trans-

fers of Property, of the prop-

erty of Timorny B. Biack-

STONE, deceased.

a

Upon reading and filing the report of Charles

B. Page, the Appraiser herein, dated the 19th day

of February, 1901, it is

Ordered, that the cash value at the date of de-

cedent’s death of the property, the transfer of

which is liable to taxation in this proceeding, and

the tax to which the same is liable, are as follows :

Cash

Name of Beneficiary. Value. Tax.

Ellen B. Plant, niece.... $25,000 $1,250.00

William LL. Harrison,

grandnephew ...----- 80,000 1,500.00

Paul Harrison, grand-

nephew ...-.--------- 30,000 1,500.00

Gertrude Harrison, grand-

BISCO. on cccecccnccee 20,000 1,000.00

George Blackstone,

nephew. .--.. -.------ 50,000 2,500.00

Adelaide Blackstone,

NR nin wciieaidinm xeon 20,000 1,000.00

Emma Pond, niece- ----- 20,000 1,000.00

William N. Blackstone,

nephew . . .----------- 250,000 12,500.00

Harriet B. Camp, niece.. 25,000 1,250.00

10

Cash

Name of Beneficiary. Value. Tax.

Frances Ella Huntington,

I iticie tciettecieecenn: 25,000 1,250.00

Lorenzo Blackstone,

grandnephew- ---_.._.- 25,000 1,250.00

Morton F. Plant, nephew 10,000 500.00

William J. Bryson,

SNE Sas cdc nodee 15,000 750.00

Susan E. Jones, stranger 5,000 250.00

James Blackstone Memo-

rial Library Association

of Branford, Connec-

GEN bcc tsinbindendons. 100,000 5,000.00

Art Institute of Chicago 25,000 1,250.00

Chicago Orphan Asylum 25000 1,250.00

Home of the Friendless,

EE cpvcdnbicanks 25,000 1,250.00

St. Luke’s Hospital,

CE dctcdpenckoas 25,000 1.250.00

Passavant Memorial Hos-

pital, Chicago. ....-. 25,000 1,250.00

Chicago Relief and Aid

Society, Chicago - __--- 25,000 1,250.00

Isabella F. Blackstone,

WO kadk ccucaanace 3,753,609.58 37,536.00”

It thus appears that the only amount recovered by

the judgment or decree to be reviewed herein is $139.68.

The Surrogate’s first order of February 20, 1901, is

not a judgment for money. It finally determines the

amount of property passing under the will of the de-

cedent and the amount of tax to which such property -

is subject, but it does not determine by whom such

tax is to be paid, and upon it no execution can issue.

The order would be in precisely the same form if all

the taxes were directed by the will to be paid by the

residuary legatee. Before any personal liability for

the payment of these taxes can be imposed a separate

proceeding by the District Attorney of New York

11

County is required under the following provisions of

the New York Transfer Tax Law:

“x0. 235. Proceedings for the collection of

taxes. If the county treasurer or state comp-

troller shall have reason to helieve that any tax is

due and unpaid in a county in which he is author-

ized to receive the tax under this article, after the

refusal or neglect of the persons liable therefor to

pay the same, he shall notify the district attorney

of the county, in writing, of such failure or neglect,

and such district attorney, if he have probable

cause to believe that such tax is due and unpaid,

shall apply to the surrogate’s court for @ citation,

citing the persons liable to pay such tax to appear

before the court on the day specified, not more

than three months after the date of such citation,

and show cause why tax should not be paid. The

surrogate, upon such an application, and when-

ever it shall appear to him that any such tax a0-

cruing under this article has not been paid as re-

quired by law, shall issue such citation and the

service of such citation, and the time, manner and

proof thereof, and the hearing and determination

thereon and the enforcement of the determination

or order made by the surrogate shall conform to

the provisions of the code of civil procedure for the

service of citation out of the surrogate’s court, and

the hearing and determination thereon and its en-

forcement so far as the same may be appli-

cable. The surrogate or his clerk shall, upon

request of the district attorney, county treas-

urer, or the comptroller of the state, fur-

nish, without fee, one or more transcripts

of such decree, which shall be docketed

and filed by the county clerk of any county of the

state without fee, in the same manner and with

the same effect as provided by law for filing and

docketing transcripts of decrees of the surrogate’s

court. The costs awarded by any such decree

12

after the collection and payment of the tax to the

county treasurer or state comptroller may be re-

tained by the district attorney for his own use.

Such costs shall be fixed by the surrogate in his

discretion, but shall not exceed in any case where

there has not been a contest, the sum of one hun-

dred dollars, or where there has been & contest

the sum of two hundred and fifty dollars. When-

ever the surrogate shall certify that there was

probable cause for issuing a citation and taking

the proceedings specified in this section, the state

treasurer shall pay or allow to the county treas-

urer or the state comptroller all expenses incurred

for the service of citations and other lawful dis-

bursements not otherwise paid. In proceedings

to which any county treasurer or the state comp-

troller is cited as a party under sections two hun-

dred and thirty and two hundred and thirty-one

of this article, the state comptroller is authorized

to designate and retain counsel to represent such

county treasurer or state comptroller therein, and

to direct such county treasurer in a county in

which the office of appraiser is not salaried to pay

the expenses thereby incurred out of the funds

which may be in his hands on account of this tax,

and in any other county the state comp-

troller shall pay such expenses out of

any funds which may be in his hands on

account of this tax ; provided, however, that in the

collection of taxes upon estates of non-resident

decedents, which estates have been concealed or

the taxes thereon evaded, the state comptroller

shall not allow for legal services up to and in-

cluding the entry of the order of the surrogate

fixing the tax a sum exceeding ten per centum of

the taxes and penalties collected. And the comp-

troller of the state is hereby authorized, with the

approval of the attorney-general and a justice of

the supreme court of the judicial district in which

the former owner resided, to compromise and set-

13

tle the amount of such tax in any cuse where con-

troversies have arisen or may hereafter arise as to

the relationship of the beneficiaries to the former

owner thereof.”

Before any money judgment can be entered it will

thus be seen that an independent proceeding must be

instituted, a citation issued to and served upon all the

parties interested, an opportunity to interpose defences

given, a hearing had in court and a decree entered. In

their moving affidavit herein the defendants in error

speak of this separate proceeding as converting the

order appealed from into a judgment. They thus ad-

mit that the order is not now a judgment. Until such

decree has been obtained the persons liable to pay the

taxes are not determinable.

That the foregoing views are in accordance with the

practice of this Court will, we think, be shown by the

nature of the security required by this Court in

recent similar tax cases :

(a) Scudder v. Comptroller, 175 U. S., 321

(1898).

Error to the Surrogates Court of the County of

New York to review a judgment on remittitur

affirming an order fixing a transfer tax of more

than $2,000, with costs.

Supersedeas bond, $500.

(6) New York State v. Barker, 179 U.8., 279

(1900).

Error to review a decree dismissing writ of

eertiorari to review a personal tax assessment of

more than $5,000.

Supersedeas bond, $500.

(c) Magoun v. Illinois Trust and Savings Bank,

170 U. S., 283 (1897).

Appeal from decree of United States Circuit

Court for the Northern District of Illinois, dis-

missing a suit to enjoin the collection of an in-

Cy

Gi

co

14

heritance tax of more than $5,000 under the laws

of Illinois.

Supersedeas bond, $500.

(d) Sawyer v. Kochersperger, 170 U. 8., 303

(1897).

Error to Circuit Court for the Northern Dis-

trict of Illinois to review judgment for defendant

for inheritance tax of $6970.

Supersedeas bond, $500.

II. The established rule of this Court is

that upon the facts existing at the time the

security was accepted, the action of the

Justice within the statute and within the

rule of practice is, in the absence of fraud,

final, and it will be presumed that every

fact was presented to him that could have

been presented.

Jerome v. McCarter, 21 Wallace, 17, 31.

Draper v. Davis, 102 U.8., 370.

Ez parte French, 100 U. S., 1, 5.

Railroad Co. v. Schutte, 100 U.S., 644, 646.

Martin v. Hazard Hotel Co., 93 U. S., 302.

The moving papers here set up no change in the cir-

cumstances of the case, or of the parties or of the

surety upon the bond, since the allowance of the bond

herein, and the annexed answering affidavit of the

solicitor for the plaintiff in error shows that nothing

has occurred since that time which can in any way

prejudice the defendants in error.

The sole purpose of the plaintiff in error has been to

secure a speedy and final determination of the import-

ant questions involved in this cause, and in all her

procedure she has endeavored to comply strictly with

the rules and practice of this Court. If in any respect

the Court deems that the interests of the defendants in

15

error require further protection, the plaintiff in error

will immediately comply with any suggestion the

Court may make. The interests not only of the

plaintiff in error, but of many other citizens of the

country will be served by the early settlement of the

questions raised herein.

Ill. The relief demanded by the defend-

ants in error should be denied.

Dated November 15, 1902.

Respectfully submitted,

Epwarp W. SHELDON,

Rosert WILKINSON,

Of Counsel for Plaintiff in Error.

Supreme Court of the United States.

IsaBpetLa F. BuacksTone individu-

ally and as Executrix of the Last

Will and Testament of Timothy

B. Blackstone, deceased,

Plaintiff in Error,

October Term,

‘acini 1902, No. 423.

Naraan L. Minter, Comptroller

of the State of New York, and

Epwarp M. Grout, Comptroller

of the City of New York,

Defendants in Error.

County of New York,

Srate or New York,

88

SourHERN Disrricr or New York,

Epwarp W. SHELDON, being duly sworn, says:

First. That he is the solicitor for the plaintiff in

error herein ; that the writ of error and citation herein

were granted by the Honorable Rurus W. PEckHaM,

Associate Justice, on August 4, 1902; that a bond in

the penalty of $1,000, with the American Surety Com-

pany of New York as surety, was approved by such

Justice on the same day, after a full statement of the

facts and circumstances of the case, and that the record

and proceedings herein were filed in the office of the

Clerk at Washington on August 15th, 1902.

Srconp. Deponent denies that he ever informed the

solicitor for the defendants in error herein that the prop-

ee

—

2

erty of Timothy B. Blackstone had been removed from

the State of New York, as alleged in the affidavit of said

solicitor, verified November 12th, 1902, attached to the

motion papers herein. On the contrary, deponent is

informed and believes that in addition to large amounts

of other property the plaintiff in error is 4

and has continuously since the death of said Timothy

B. Blackstone in May, 1900, been possessed of more

than enough property in the State of New York to pay

any tax that may be levied pursuant to the proceed-

ings sought to be reviewed herein.

Tarp That the plaintiff in error is anxious to

prosecute the writ of error with all possible diligence ;

that the solicitor for the defendants in error promised

deponent in September, 1902, that he, the said solicitor,

would join with deponent in asking the Court to ad-

vance this cause for argument; that deponent there-

upon prepared motion papers to secure such advance,

but the solicitor for the defendants in error refused to

join in such motion ; that the reason assigned by said

solicitor for such refusal was his fear that if the Court

advanced the cause, it might be reached for argument

before he could prepare his brief ; that deponent a few

‘ days later renewed his request that such joint motion

be made; that this request was again denied ; that

thereafter and on November 1, 1902, deponent was

served with Mr. Justice PeckHam’s order to show

cause why the approval of the appeal bond herein

should not be canceled ; that deponent thereafter gave

notice of an application to the Court on Monday, No-

vember 10th, 1902, to advance said cause, and that

such motion is still pending and undetermined.

Fourtn. That in anticipation of the appeal herein

the plaintiff in error was willing to pay, under

protest, the amount of the tax claimed by the

State of New York, but was advised by deponent

that under the terms of the New York Transfer

Tax law there was doubt as to whether an ap-

f Sie 7 16

3

plication to refund the amount of taxes errone-

ously paid must not be made within two years from the

date of entry of the order fixing the tax, and that in

the present case such period of two years would ex-

pire February 21st, 1903 ; that since the entry of the

order of the Court of Appeals of the State of New

York and the order of the Surrogates’ Court of the

County of New York made thereon and dated June

30th, 1902, there has been no change in the circum-

stances of the case or of the parties or of the surety

on the bond, which would prejudice or affect the right

of the State of New York to collect any tax that may

finally be adjudged to be due herein ; that the plaint-

iff in error is willing to give any additional bond that

may be required by the Court herein, but that de-

ponent believes that the penalty of the bond already

given herein was fixed in complete accordance with

the rules and practice of this Court, and is sufficient.

Epwarp W. SHELDoN.

Subscribed and sworn to be-

fore me this 15th day of

November, 1902.

DantEL Moynaian,

Notary Notary Public,

Public’s Kings County.

Seal Certificate filed in New York County.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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