Opinion
January 12, 1928.
Baker Obermeier, for the executrix.
Charles A. Curtin [ Francis H. Warland of counsel], for the State Tax Commission.
This is an application for an order vacating the pro forma order fixing tax heretofore entered, and declaring the estate exempt from transfer tax, on the ground that there has been included among the taxable assets the sum of $8,341.38, the proceeds paid to the executrix of the estate from the teachers' retirement fund. The application is granted. The transfer of the said amount so received is exempt from tax. ( Matter of Morrison, 130 Misc. 438.) The contention of the State that the remedy of the executrix was by appeal, and not by motion, is without merit. Pursuant to section 20 of the Surrogate's Court Act, the court may modify its order fixing tax where jurisdiction has been mistakenly assumed, and this even though the time to appeal has expired. ( Matter of Putnam, 220 A.D. 34; Matter of Scrimgeour, 80 id. 388; affd., 175 N.Y. 507; Matter of Coogan, 27 Misc. 563; affd., sub nom. People ex rel. Coogan v. Morgan, 45 A.D. 628; affd., 162 N.Y. 613.) Submit order on notice vacating the taxing order and declaring the estate exempt from transfer tax.