In re the Transfer Tax upon the Estate of Cook (194 N.Y. 400, 1909)

Willard Bartlett, J.

This is an appeal which seeks to review an order of the surrogate of Monroe county fixing the transfer tax upon the estate of Frederick Cook, deceased, which order has already once been reviewed by the Appellate Division and the Court of Appeals at the instance of the same appellant. (Matter of Cook, 187 N. Y. 253.) The original order assessed and taxed the five separate legacies or interests involved. The first notice of appeal specified as grounds for the appeal (1) that the bequest to Frederick Cook MacDonell should have been taxed at 1% instead of 5%; (2) that the residuary estate, with a specified exception, should have been taxed at 1% instead of 5%; and (3) that certain stocks were appraised beyond their fair market value. The Appellate Division affirmed the order of the Surrogate’s Court except so far as it related to the residuary estate, holding that the residuary estate should be taxed at 1% instead of 5$. The Court of Appeals reversed the determination of the Appellate Division, and held that the residuary estate, should be taxed at 5 f0 and that the legacy to Frederick Cook MacDonell should be taxed at only 1%, and modified the order of the Surrogate’s Court accordingly.

The notice of the present appeal from the order of the Surrogate’s Court specifies a new ground of appeal, namely, that the remainder interest in a trust of $200,000 created for the benefit of Fredericka Louise MaeDonell should have been taxed at 1% instead of 5$. The surrogate refused to dismiss this second appeal. He conceded the general rule to he that a person appealing from a judgment or order should include all his objections thereto in one appeal, but held that a surrogate’s order fixing a transfer tax is a several judgment as to each interest taxed, and that a person aggrieved has the right to appeal separately from eacli adjudication therein contained. The surrogate then proceeded to hear the appeal upon the merits and reduced the tax on the remainder interest in the $200,000 trust from 5