for refunding them or permitting their recovery in case they have been improperly exacted." The law of some states contemplates that when property taxes are paid under protest that they are illegal, or with notice that the payer denies their legality and intends to sue to recover them back, a sufficient foundation for such suit is laid; and this rule, where recognized, would seem applicable to inheritance taxes. But however this may be, it has been decided that payment of such taxes, upon the demand of the collector, coupled with a threat that unless promptly paid they will be enforced with interest and penalty, is an involuntary payment, which will serve as the basis for an action to recover back the money." 56 In Iowa a taxpayer cannot recover interest in his suit to recover an excess of inheritance tax paid under protest. The statute permitting such recovery does not provide for the payment of interest to any claimant for taxes overpaid; it creates no liability against the state for the use of the money." But in New York it 55 Estate of Coogan, 27 Misc. Rep. 563, 59 N. Y. Supp. 111; Estate of Mather, 90 App. Div. 382, 85 N. Y. Supp. 657, 179 N. Y. 526, 71 N. E. 1134. Under the Wisconsin statute, one who is aggrieved by the orders of the county court in fixing and assessing the inheritance tax is not required to appeal, but may sue to recover back the tax: Beals v. State, 139 Wis. 544, 121 N. W. 347. Where one has voluntarily paid a transfer tax in New York under a mistake of law which is not discovered until after the court of last resort has decided the property not subject to the tax, the surrogate will not grant him relief, since it is important that there shall be finality to decree imposing the tax: Estate of Von Post, 35 Misc. Rep. 367, 71 N. Y. Supp. 1039. Where a tax has been paid under a statute subsequently declared unconstitutional, the amount thereof may be recovered back: Miller v. Howey (Estate of Wood), 91 App. Div. 3, 86 N. Y. Supp. 269; Estate of Scrimgeour, 80 App. Div. 388, 80 N. Y. Supp. 636, 175 N. Y. 507, 67 N. E. 1089. 56 Herold v. Kahn, 159 Fed. 608, 86 C. C. A. 598, 163 Fed. 947, 90 C. C. A. 307. 57 Wieting v. Morrow, 151 Iowa, 590, 132 N. W. 193. has been decided that where the state or municipality becomes liable to refund a transfer tax because it was illegal or void, the right to interest follows without any express provision on the subject. The tax in respect to which this decision was rendered was paid under a statute afterward declared unconstitutional. Moreover, the general law in that state for the assessment and collection of taxes on property provides that in case of payment of an illegal or excessive tax, subsequently corrected by the courts, it shall be repaid to the taxpayer with interest.58 § 320. Interest and Penalties.-In order to encourage the prompt payment of inheritance taxes, the law usually allows a discount if they are paid within a specified time after their accrual, and imposes interest if payment is delayed beyond a certain time. In case payment is still further delayed, a higher rate of interest, or a penalty, is added,59 except where there has been necessary litigation or other unavoidable causes for delay in the settlement of the estate and the ascertainment of the tax. But while delays due to such 60 58 Estate of O'Berry, 179 N. Y. 285, 72 N. E. 109. 59 Bradford v. Storey, 189 Mass. 104, 75 N. E. 256; Estate of Sanford (Neb.), 133 N. W. 870; Estate of Wormser, 51 App. Div. 441, 64 N. Y. Supp. 897; Sprankle v. Commonwealth, 2 Walk. (Pa.) 420; Commonwealth v. Smith, 20 Pa. 100; Estate of Lines, 155 Pa. 378, 26 Atl. 728. 60 People v. Prout (Estate of Prout), 53 Hun, 541, 6 N. Y. Supp. 457; Estate of Bolton, 35 Misc. Rep. 688, 72 N. Y. Supp. 430; Estate of Bates, 7 Ohio N. P. 625, 5 Ohio S. & C. P. Dec. 547; Miller v. Commonwealth, 111 Pa. 321, 2 Atl. 492; Appeal of Commonwealth, 128 Pa. 603, 18 Atl. 386; State v. Pabst, 139 Wis. 561, 121 N. W. 351. An executor is responsible for the amount of interest and penalties imposed by the New Jersey statute regulating the payment of the collateral inheritance tax, resulting from his neglect to pay the tax within the limit of time required to prevent such additional charges to the estate: Wyckoff v. O'Neil, 71 N. J. Eq. 729, 71 Atl. 388. Section 2650 of the New York Code of Civil Procedure, suspending action by an executor after he has been served with a citation upon a petition to revoke probate until a decree is made in the proceeding, does causes may be ground for remitting the penalty, or the increased interest, they do not prevent the imposition of the ordinary interest from the time the statute declares it shall run."1 61 Where, after the accrual of an inheritance tax, the statute imposing it is repealed and a new one enacted with a clause saving any "right accruing, accrued or acquired" under the law repealed, the persons subject to the tax are entitled to any immunities or privileges in respect to the time of payment that were provided by the repealed statute, and it governs the liability for interest and penalties." 62 not take away the right to charge interest, prior to such decree, on a tax imposed by the transfer tax act; the case is provided for by the provision of the act directing that a modified rate of interest should be charged where, "by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, the estate" cannot be settled: Estate of Stewart, 131 N. Y. 274, 14 L. R. A. 836, 30 N. E. 184. Relief from the penalty will not be granted when the only reasons advanced there for are that the executor was ignorant of the law and hardship will result to the legatees: Estate of Platt, 8 Misc. Rep. 144, 29 N. Y. Supp. 396. It is the duty of executors, where a part of the the estate cannot be settled up within the year, to estimate the amount thus suspended, and pay the collateral inheritance tax on the balance; otherwise they are chargeable with interest thereon at the rate of twelve per cent per annum: Appeal of Commonwealth, 34 Pa. 204. 61 People v. Rice, 40 Colo. 508, 91 Pac. 33, a leading case holding that six per cent interest was payable from the death of the decedent, although his will was contested and suits were brought against a corporation in which he was a stockholder, which suits, if successful, would have rendered his estate insolvent: Estate of Miller, 182 Pa. 157, 37 Atl. 1000, holding, where there had been unavoidable delay in the settlement of an estate, the penalty should not be imposed but interest should be required after the expiration of one year from the death of the decedent, although a large portion of the estate did not come into the executor's hands until after such year had elapsed; Estate of Moore, 90 Hun, 162, 35 N. Y. Supp. 783, holding, in case of unavoidable delay and several years' litigation, no penalty should be exacted, but interest should be paid as part of the tax; Shelton v. Campbell, 109 Tenn. 690, 72 S. W. 112. 62 Estate of Fayerweather, 143 N. Y. 114, 38 N. E. 278; Estate of Milne, 76 Hun, 328, 27 N. Y. Supp. 727; Estate of Moore, 90 Hun, 162, 85 N. Y. Supp. 783. § 339. Explanatory. CHAPTER XXII. FORMS. § 340. Petition for Appointment of Appraiser in Estate of Resident Decedent. § 341. Petition for Appointment of Appraiser in Estate of Nonresi § 342. dent Decedent. Order Appointing Appraiser. § 343. Oath of Appraiser. § 344. Appraiser's Notice of Hearing. § 345. Affidavit of Mailing of Notice of Hearing. § 352. Order on Appeal. § 353. Notice of Appeal to Appellate Division. § 354. Petition for Remission of Penalty. $355. Notice of Motion to Remit Penalty. § 356. Order Remitting Penalty. § 357. Petition for Order Fixing Tax Without Appraiser. § 358. Order Fixing Tax Where No Appraiser Appointed. § 359. Petition to Declare Estate Exempt. § 360. Order Exempting Estate. § 361. Order Remitting Report to Appraiser. § 362. Composition Agreement. § 363. Waivers of Notice by Controller. § 364. Affidavits for Appraisal of Nonresident's Estate. § 365. Memorandum Used by Appraisers of New York County for Preparation of Affidavits. § 366. District Attorney Proceedings-Petition for Citation. § 367. District Attorney Proceedings-Order for Citation. § 368. District Attorney Proceedings-Citation. § 369. District Attorney Proceedings-Order Appointing Appraiser. § 370. District Attorney Proceedings-Decree Fixing Tax, Directing Payment, etc. § 339. Explanatory.-When the variations in the statutory provisions and the court procedure in the different American commonwealths are considered, it becomes obvious that to draft a set of inheritance tax forms adapted, in all details, to the practice in the different states of the Union would be impracticable. Nevertheless, it is believed that the different jurisdictions have, in matters of procedure, enough in common so that forms suited to one will be a substantial aid in others as indicating the steps to be taken in any proceeding, the points essential to be stated, and the phraseology suitable for clothing them. It has therefore been thought expedient, in this book, to give the forms adapted to some particular state; and as the litigation has been more extensive, and hence presumably the practice has become better settled, in New York than elsewhere, that state has been selected as a model. With modifications here and there to meet local conditions, it is believed that the New York forms will prove very serviceable and satisfactory in any jurisdiction, for they have been prepared by Edward H. Fallows, Esq., of the New York Bar, whose wide experience in inheritance tax matters peculiarly qualifies him for this work. These forms appeared originally in his book on the "Collateral Inheritance and Transfer Tax Law of the State of New York," and have been received with unusual favor by the legal profession. They are here printed with his permission. § 340. Petition for Appointment of Appraiser in Estate of Resident Decedent. Surrogate's Court, County of In the Matter of the Transfer Tax Deceased. To the Surrogate's Court of the County of .... ... respectfully shows: First. That your petitioner is the.... decedent, and as such a person interested in the estate of the said decedent. Second. That the said decedent departed this life on the ... day of ... ..., at cedent was a resident of ; that the said de Third. That letters on the estate of said decedent were, on the ...... day of issued to your petitioner by the Surrogate's Court of the County of and that h.. postoffice address is.. Fourth. That, as your petitioner is informed and believes, the property of said decedent, or some portion thereof or some interest therein, is or may be subject to the payment of |