govern." Questions not raised below will ordinarily not be considered in the appellate tribunal.15 A finding that an amount deducted for the erection of a tomb was reasonable will not be reviewed, if the record does not show how much was reserved for that purpose. But in any case where the court can see that a ruling in rejecting evidence may have been prejudicial to the appellant, it should not insist that an exception is indispensable to a review of the errors committed in its rejection."

16

On the decision of the surrogate acting as an assessor, an appeal does not lie in New York. The proper practice is to apply to the surrogate to review his decision, and appeal from the determination thereof.18

A surrogate has authority, upon an appeal to him from an order confirming the report of the appraiser, to receive proof that a transfer of property by the decedent in his lifetime was made in contemplation of death and therefore is taxable.19

If the supreme court assumes jurisdiction, on an appeal from an order appointing an appraiser, to ascertain the amount of the inheritance tax alleged by the authorities to be due, it will go no further than to ascertain whether there was any property subject to the appraisement.20

In Illinois, inheritance tax cases are appealed directly to the supreme court from the county court, regardless of whether revenue is directly involved."1

14 Estate of Culver (Iowa), 133 N. W. 722.

15 People v. Sholem, 238 Ill. 203, 87 N. E. 390.

16 Morrow v. Durant, 140 Iowa, 437, 17 Ann. Cas. 850, 23 L. R. A., N. S., 474, 118 N. W. 781.

17 Estate of Brundage, 31 App. Div. 348, 52 N. Y. Supp. 362.

18 Estate of Costello, 189 N. Y. 288, 82 N. E. 139.

19 Estate of Thompson, 57 App. Div. 317, 68 N. Y. Supp. 18.
20 Douglas County v. Kountze, 84 Neb. 506, 121 N. W. 593.
21 People v. Sholem, 238 Ill. 203, 87 N. E. 390.

The order of a surrogate "fixing the transfer tax upon an estate is an entirety, and a party claiming to be aggrieved thereby and taking an appeal should present upon that appeal every objection which he has to the order. It would lead to endless delay and confusion if he was permitted to take a separate appeal for each objection he had to the order of the surrogate. The practice in this class of cases has always been to consider only such objections as the appellant specifies, and to affirm the order as a matter of course in all other respects. The specification of one or more objections is deemed equivalent to a concession that the appellant regards the decree in all other respects correct. It is, in substance, an appeal only from those parts to which objection is made, and after an appeal from one part of a decree, a defeated appellant has never been permitted to appeal from other parts, and so on piecemeal, until he has obtained a review of the whole by successive appeals." **

22 Estate of Cook, 194 N. Y. 400, 87 N. E. 786.

22

§ 314.

Adjudication in Another State-Full Faith and Credit.

2

§ 308. Method of Enforcement, in General.-The manner of enforcing inheritance taxes has, to some extent, already been considered in the chapters on "Persons or Fund Liable for the Tax and Lien of the Tax."1 Since an inheritance tax is on the succession rather than on the property, proceedings to enforce it are not in rem. The proper mode of suing for a collateral tax in case of a legacy in remainder has been said to be by a bill in equity, in the nature of an information, in the name of the attorney general. Suit to recover a tax should be brought directly against the heirs liable therefor, rather than against the succession, for the tax is their debt, not that of the succession. A surrogate may enforce his order for the payment of a tax by proceedings for contempt, other than against executors, adminis

1 See secs. 260-273, ante. As to the power of a revenue agent in Kentucky to prosecute proceedings to collect a tax, see Commonwealth . Gaulbert, 134 Ky. 157, 119 S. W. 779.

2 Estate of Wolfe, 2 Con. 600, 15 N. Y. Supp. 539.

Attorney General v. Pierce, 59 N. C. 240.

Succession of Pargoud, 13 La. Ann. 367.

trators and trustees, but not before the issuance and return of execution."

The discretionary power of a surrogate to appoint a special guardian for a minor interested in an estate can be exercised only when some reason exists therefor. Hence in proceedings to assess an inheritance tax, it is improper to make an allowance to a special guardian appointed for an infant party interested in remainder whose interest cannot be determined or taxed in that proceeding, wherein the only question presented is one between the state, the executor, and an adult life tenant."

The state has the burden of proving the facts under which an inheritance tax may be imposed.'

§ 309. Failure of Statute to Prescribe Procedure.An inheritance tax statute is not defective in failing to provide a method for its enforcement if it expressly creates a liability on the part of the recipients of inherited estates to pay the amount of the tax to the county treasurer for the use of the state. He can maintain an ordinary action, based on such liability, against them whenever there is a refusal to make payment. In case the statute clearly prescribes the method of enforcing collection of the tax, its validity is not affected by the fact that there is no established practice of the probate court in like cases for the service of citations out of that court, the hearing thereon, and the enforcement of the court's order. It is not enough, however, for the legislature merely to declare certain transfers taxable; if no mode is provided for assessing and collecting the tax, the law

Estate of Prout, 3 N. Y. Supp. 831.

• Estate of Post, 5 App. Div. 113, 38 N. Y. Supp. 977. Estate of Miller, 77 App. Div. 473, 78 N. Y. Supp. 930.

8 Estate of McKennan (S. D.), 130 N. W. 33.

Union Trust Co. v. Probate Court, 125 Mich. 487, 84 N. W. 1101.

is imperfect, and cannot, as to such transfers, be executed.10

§ 310. Law Governing Procedure. The rights and liabilities of the parties in the matter of an inheritance tax are, in case of a change in the statutes, governed by the law in force at the time of the decedent's death, but the procedure for the ascertainment and enforcement of the tax is controlled by the statute in force at the time of the institution of the proceeding. This is in accordance with the general rule that, in the absence of words of exclusion, a statute which relates to the form of procedure or the mode of defending or attaining rights, is applicable to proceedings pending or subsequently commenced."1

11

§ 311. Accrual of Tax and Time for Payment.— The accrual of inheritance taxes, together with the time for their payment, in the case of powers of appointment and estates in remainder or upon contingency, has been considered in preceding chapters dealing with those subjects.12 The general rule is, that the inheritance tax accrues on the death of the decedent, for the tax is on the succession, and it is at that time that the succession takes place. The tax

13

10 Estate of Embury, 19 App. Div. 214, 45 N. Y. Supp. 881, affirmed, 154 N. Y. 746, 49 N. E. 1096.

11 Estate of Davis, 149 N. Y. 539, 44 N. E. 185; Matter of Sloane, 154 N. Y. 109, 47 N. E. 978; Estate of Sterling, 9 Misc. Rep. 224, 30 N. Y. Supp. 385.

12 See secs. 78-103, ante.

13 Estate of Seaman, 147 N. Y. 69, 41 N. E. 401; Estate of Davis, 149 N. Y. 539 44 N. E. 185; Appeal of Mellow, 114 Pa. 564, 8 Atl. 183; Prevost v. Greneaux, 60 U. S. (19 How.) 1, 15 L. Ed. 572. For this rule applied to cases under the former United States revenue acts, see May v. Slack, Fed. Cas. No. 9336; Hellman v. United States, 15 Blatchf. 13, Fed. Cas. No. 6341; United States v. New York L. I. & T. Co., 9 Ben. 413, Fed. Cas. No. 15,873; United States v. Townsend, 8 Fed. 306; Sturges v. United States, 117 U. S. 363, 29 L. Ed. 920, 6 Sup. Ct. Rep. 767.