The testimony of the witness Phillips Was sufficient to place on the executors the burden not necessarily of showing what had become of the property of the deceased during the. lapse of time which had intervened between the occurrence’s when Phillips saw or was told about the said property by the deceased' and the death of the latter, but of showing that such property had not comic into their hands under such circumstances as would render it liable to taxation, in this proceeding and also of showing that they had no knowledge or. information on the stibject beneficial to- the State. This they failed to do. Their refusal to answer proper questions before the appraiser was contumacious. If the two' executors who thus defied the court were the only ones- affected by the decree fixing the tax I would fa-vor an affirmance of such decree on the theory that the appraiser and surrogate were ¡justified in finding that the information which the executors improperly withheld would have corroborated the testimony of .Phillips. One of the- executors- did subsequently recede from liis contemptuous attitude,, but not the other. An affirmance of the decree^ however, would visit- the misconduct of the- executors upon innocent legatees who- must bear tiie greater part of the tax which has been imposed. For this reason I concur in the reversal.
Decree of the surrogate reversed upon law and facts and matter remittedi to the surrogate- for reassessment, without costs to either party. - ’ -