The executor, pursuant to the requirements of law, paid the estate taxes from property in his possession. He is charged with the duty of recovering the proportionate amount of such taxes from persons possessing taxed property or interested in the estate. (Decedent Estate Law, § 124.) The appellants, or those they represent, were nonresident -donees of gifts which were included in the gross taxable estate. As such they are persons beneficially interested in the estate. (Tax Law, § 249-m, subd. [g].) Estate taxes are a lien on all property included in the gross taxable estate. (H. S. Revenue Act of 1926, § 315, see IT. S. Code, tit. 26, § 827; Tax Law, § 249-bb.) The executor, having paid the taxes, is deemed subrogated to the rights of the sovereigns. The property here which was subjected to the tax liens forms a res which gives the courts of this State jurisdiction of an equitable proceeding in rem to prorate and apportion the estate taxes. There can be no comprehensive apportionment without consideration of all of the taxed property. The proceeding could properly be brought upon notice to all interested in the estate, including nonresidents who hold part of the taxed property. Any decree procured could operate on the shares of the estate found here. We need not consider what further effect it would have either within or without the State. At least one of the nonresidents was cited individually. It was within the power of the Surrogate’s Court to cite the individual nonresident donees for the purposes indicated. The present citation included such relief. Though the citation went further and included relief in personam, and was directed to foreign executors, this would not invalidate it as a whole. There was no application to limit the citation.
The order overruling the challenge to the court’s jurisdiction should be affirmed.
*712Martin, P. J., Townley and Peck, JJ., concur with Glen-non, J.; Callahan, J., dissents in opinion.
Order so far as appealed from reversed and the proceeding dismissed as to the appellants, with $20 costs and disbursements to the appellants payable out of the estate, and the matter remitted to the Surrogate of the County of New York for further action in accordance with the opinion of Glennon, J. Settle order on notice.