of a 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 fund 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.1 In Tennessee the primary jurisdiction of cases involving the collection of inheritance taxes is in the county court, but the court of chancery may entertain the controversy if there is no demurrer.15 But the pendency in the chancery court of proceedings for the settlement of an estate does not deprive the county court of jurisdiction to collect the inheritance tax. While the statute does provide for the collection and retention of the tax in suits pending in the chancery court, it evidently is intended as an additional remedy to that which exists in the county court, and its purpose is to make certain the collection of the tax before the estate is distributed. The county court has jurisdiction to entertain suits by the clerk thereof to collect taxes under the statute of 1909.17 16 Section 4 of the Illinois statute of 1895, requiring an administrator or executor to make application to the court having jurisdiction of his account in the event of questions arising as to apportionment of inheritance taxes, does not oust the county court of jurisdiction of 14 Barrett v. Continental Realty Co., 130 Ky. 109, 114 S. W. 750. 15 Fidelity & Deposit Co. v. Crenshaw, 120 Tenn. 606, 110 S. W. 1017. 16 Harrison v. Johnston, 109 Tenn. 245, 70 S. W. 414. 17 Knox v. Emerson, 123 Tenn. 409, 131 S. W. 972. a proceeding to collect the tax, although the estate has been certified to the circuit court. for settlement.18 Under the New York statute of 1892, the supreme court, sitting as a court of equity, has no original jurisdiction to determine whether a trust fund is subject to the transfer tax. Jurisdiction is, for all purposes of fixing the amount of the tax in the first instance, conferred solely upon the surrogate and his court." § 242. Constitutional Objections to Nonjudicial Functions. The provisions of a statute imposing on the probate court duties not strictly judicial in the matter of fixing the value of property subject to inberitance taxation and collecting the tax are not objectionable on that account; these duties are necessarily incident to the settlement of estates, and not so foreign to the jurisdiction of the surrogate or probate judge as to render their imposition on him open to any constitutional objection.20 18 Connell v. Crosby, 210 Ill. 380, 71 N. E. 350. 19 Weston v. Goodrich, 86 Hun, 194, 33 N. Y. Supp. 382. 20 Union Trust Co. v. Durfee, 125 Mich. 487, 84 N. W. 1101; Estate of McPherson, 104 N. Y. 306, 58 Am. Rep. 502, 10 N. E. 685; Nunnemacher v. State, 129 Wis. 190, 9 Ann. Cas. 711, 9 L. R. A., N. S., 121, 108 N. W. 627; Beals v. State, 139 Wis. 544, 121 N. W. 347. CHAPTER XVII. APPRAISEMENT, VALUATION, AND ASSESSMENT. § 250. Statement of Property and Persons Liable for Tax. Appraisers and Appraisement, in General. § 251. § 257. § 258. Valuation of Notes and Doubtful or Litigated Claims. § 259. Time of Which Valuation Determined. § 260. Report of Appraisers. § 261. Reappraisement of Property. § 250. Statement of Property and Persons Liable for Tax.-To the end that the fiscal officers of the state may be in a position to enforce the collection of inheritance taxes, some statutes require executors or administrators to file a statement or inventory showing the character and value of the estate and the names of the persons to whom it will go as distributees and who are charged with the duty of paying the tax. The law leaves no discretion with the personal representative or the court in the matter of making the inventory; and it is the duty of the court, in any case, upon attention being called to a failure on the part of the executors or administrators to comply with the law, to see that they perform their duty. The fact that the public may have received all necessary information through the examination of witnesses will not purge of error the court's refusal to order the inventory to be made." an executor is ordered to have the property appraised, If 1 Commonwealth v. Gaulbert, 134 Ky. 157, 119 S. W. 779, holding that three months after the qualification of the executor or administrator is a reasonable time within which to file the statement. 2 People v. Sholem, 244 Ill. 502, 91 N. E. 704. he must comply with the order, notwithstanding the will may direct him to make no returns of the property." Personal property of a resident decedent, which has not come into the possession of the domiciliary administrator, but has been distributed through ancillary administration in the state where located, should be included in his inventory.sa The inventory is not conclusive, but when it is claimed that any assets have been omitted, inquiry will be confined to the omitted property.* § 251. Appraisers and Appraisement, in General.— The procedure to be followed in the appointment of appraisers and the determination of the value of the property, for purposes of inheritance taxation, is usually prescribed somewhat in detail by the various statutes. The New York statute of 1892 provides that "the surrogate, upon the application of any interested party, shall, as often and whenever occasion may require, appoint a competent person as appraiser." Under this statute the court of appeals has decided that the power of a surrogate to appoint an appraiser and fix a transfer tax does not depend upon the prior ascertainment of the facts as to claims against 3 Estate of Morris, 138 N. C. 259, 50 S. E. 682. People v. Sholem, 244 Ill. 502, 91 N. E. 704. 5 In case of a will giving cash legacies the appointment of an appraiser was deemed unnecessary in Estate of Astor, 6 Dem. Sur. (N. Y.) 402. Upon an application for the appointment of an appraiser under the Laws of 1887, the legatees or other beneficiaries were not necessary parties: Estate of Astor, 20 Abb. N. C. 405. As to the interpretation of the New York statute of 1905, providing for the appointment of appraisers by the state controller, see Duell v. Glynn, 191 N. Y. 357, 84 N. E. 282. As to the authority of a surrogate of New York county to select an appraiser after the enactment of chapter 658 of the Laws of 1900, see Estate of Sondheim, 32 Misc. Rep. 296, 66 N. Y. Supp. 726, affirmed, 69 App. Div. 5, 74 N. Y. Supp. 510. the estate; but that the time when he shall proceed, where the interests are ascertainable and certain, is in general left to his sound discretion." But the statute of 1896 seems to eliminate the words of the former law affording ground for this discretion; and under it he must act upon his own motion, when he learns of facts affording reason to believe that such proceeding ought to be instituted; and upon the application of an interested party, when a proper aplication is made. In either case, his duty to act apears imperative. At least this is the view taken by the supreme court in one case,' but in another case the view seems to be toward the prior doctrine, to the effect that the time when a surrogate shall appoint an appraiser and proceed is a matter of sound discretion. The surrogate has authority, under the New York statutes of 1896 and 1897, to appoint an appraiser upon an application filed upon information and belief. He may supplement the petition by his own official knowledge, or act independently of it. Since he may, of his own motion, appoint an appraiser upon knowledge which he possesses, and without petition, his authority is not limited or circumscribed because a petition is presented by a competent person, with allegations upon information and belief." While the surrogate may, of his own motion, cause an appraisement to be made, it seems primarily to be the duty of the executors or administrators to apply therefor. It was not intended to relieve them of their obligation by authorizing the court to proceed of its own motion,10 • Estate of Westurn, 152 N. Y. 93, 46 N. E. 315. Kelsey v. Church, 112 App. Div. 408, 98 N. Y. Supp. 535. 8 Estate of Jones, 54 Misc. Rep. 202, 105 N. Y. Supp. 932. • Estate of O'Donohue, 44 App. Div. 186, 59 N. Y. Supp. 1087, 60 N. Y. Supp. 690. 10 Frazer v. People, 6 Dem. Sur. 174, 3 N. Y. Supp. 134. |