The children of George Backhouse get the one-fifth of the estate of their grandfather by his will and not by the will of their father. It vested in them when the grandfather’s will took effect (Matter of Lansing, 182 N. Y. 238). It follows that it was not subject to a transfer tax, for the Transfer Tax Law had not yet been passed when it vested in them.
The surrogate had power to modify his decree, and should have done so, first, because ,the said children were not bound by it in so far as it imposed the tax in respect of the property they took under their grandfather’s will, for they were only notified of an appraisal of their father’s estate,' and that was therefore the limit of the jurisdiction of the appraiser and surrogate on their default; second, because the surrogate’s jurisdiction being limited to transfer's covered by the statute, he had no jurisdiction to impose the tax; and, third, because at most it was a mistake all round (Matter of Scrimgeour, 175 N. Y. 507). That in this Scrimgeour case the tax was imposed under an unconstitutional provision of the statute (a fact which the blind! report of the case conceals) does not distinguish it from the present case. In each case there was no statute for what was done.
There is no evidence that the said heirs ever elected to take under the appointment, if it can be called such,- of their father’s will, or if such election could be made.
The order should be reversed and the motion granted.
Hirsohberg, P. J., Woodward, Jerks and Hooker, JJ., concurred. •
Order of the Surrogate’s Court of Kings county denying motion to modify the decree assessing transfer tax reversed, with ten dollars costs and disbursements, and motion granted, with costs.