Opinion
March, 1916.
J.C.O'Conor, for executors.
Lafayette B. Gleason (Schuyler C. Carlton, of counsel), for state comptroller.
The executors contend that the appraiser erred in placing a valuation of $16,500 on a certain bond and mortgage owned by the decedent at the time of her death. The testimony taken before the appraiser shows that the executors foreclosed the mortgage, sold the mortgaged premises at public auction and bid it in for the benefit of the estate at the sum of $5,000. The appraiser's report, however, contains no competent evidence of the value of the mortgage at the date of decedent's death. The state comptroller submitted an affidavit showing the value of the mortgaged premises; but while this is an element to be taken into consideration in ascertaining the value of the mortgage, it is not in itself sufficient proof of the value of the mortgage. That value may be affected by the financial responsibility of the mortgagor, the length of time the mortgage has to run, the character of the mortgaged premises and their location. While many of the questions propounded by the executors were incompetent, some of those which the appraiser disallowed were clearly competent and should have been allowed. Upon a hearing held before a transfer tax appraiser for the purpose of ascertaining the value of a decedent's estate, he should allow any question which tends to elicit information that may assist him in determining the value of the property. A witness should be allowed to answer, even if the question is objected to, as the materiality of the answer may be considered by the surrogate upon an appeal taken from the order entered upon the appraiser's report. As the appraiser in this matter refused to allow material questions propounded by the executors, the report will be remitted to him for the purpose of taking further testimony as to the value of the bond and mortgage. The appraiser erred in refusing to allow a reasonable sum as expenses of administration. The fact that one of the executors, who is an attorney and counsellor at law, has represented the estate in his professional capacity does not warrant the appraiser in refusing to allow expenses of administration, as the surrogate may upon an accounting allow such an executor a reasonable sum as compensation for professional services rendered by him. See Code Civ. Pro. § 2753. The power of the surrogate to grant such an allowance is governed by the law in force when the application for an allowance is made. Taking into consideration the services rendered by the attorney in this proceeding, and the value of the estate, I am inclined to think that $350 would be a reasonable deduction for such services. The expense of foreclosing the mortgage is also an expense of administration and should be deducted from the assets of the estate. The order fixing tax will be reversed and the appraiser's report remitted to him for correction and for further testimony as indicated.
Order reversed.