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.