I concur. In my judgment the state was not concluded by the order originally made by the surrogate exempting these-corporations from the tax. The tax is to be paid “to the comptroller, for the use of the state,” but that does not authorize this official to bind' the state, except by the result of an independent proceeding, such, as is provided for in section 17 of the act. Nor could the surrogate conclude the state by acting upon his own motion, or by a decision-in proceedings (instituted under section 13 of the act) to fix the value of taxable estates. The “persons interested” in that proceeding are those-whose estates were assessible. Its sole object is to correctly assess and fix. the cash value of these estates; that is, (to quote the act,) “of all estates, annuities, and life estates, or terms of years growing out of” the main estate of the decedent. The persons interested in having a fair appraisal are entitled to notice, and they alone can appeal to the surrogate from-his own action in assessing and fixing the cash value of their estates. Provision for such appeal is made in favor of any person or persons dissatisfied with the appraisement or assessment, but no provision is made for an appeal by whoever may be dissatisfied with nonappraisement or nonassessment because of supposed exemption,—a clear implication that an adjudication, under this section alone, of the question of liability, was not contemplated. Section 15 of the act is, however, invoked in. aid of the jurisdiction. "That section does confer upon the surrogate jurisdiction to “hear and determine all questions in relation to the tax arising under the provisions of the act.” But this surely is subject to. the ordinary rules which govern all hearings and determinations. It is not jurisdiction to hear and determiné ex parte or without notice to the-person to be affected by the judgment. Hére the state had no notice. An order, it is true, was served upon the comptroller, but this order was not one upon which the jurisdiction to hear and determine the question of exemption could properly be exercised. Even if it were such an order, however, and even if its service upon the comptroller would have-been service upon the state, it was not such an original process or mandate as the law contemplates. The papers upon which it was founded were not served, and the order, on its face, and standing alone, conveyed no clear idea that the question of the liability of these particular corporations was to be considered at the time and place specified. The comptroller was not directed to show cause against the exemption. ' There-was simply a statement in the order that the question whether the property disposed of in certain clauses of the will should not be valued and assessed, was reserved for further consideration on a particular day assigned for a hearing. The indorsement upon the order, too, was misleading. It simply informed the comptroller that the paper served was a certified copy of a decree “confirming appraiser’s report, and fixing tax, etc., in estate of Catharine L. Wolfe, filed herein, August 27,1887.”" *522There was nothing in this to call the comptroller’s attention to the question reserved. So far, therefore, as the comptroller was concerned, the proceeding was without notice, and as against the state the judgment amounted to nothing more than ex parte instructions to the executors, which the surrogate was not authorized to give.
Upon the second point, I think the corporations are concluded by the decretal order of February 29, 1892. The present proceeding -was under. section 17, for the enforcement and collection of the tax, and it was ended by this decretal order, which directed payment of a specific sum. The right of the staté to the tax thereupon became vested, and this right was not divested by the subsequent passage (in March and April, 1892) of exemption acts. This proceeding was therefore completed under existing laws granting no exemption. The vested rights thereby acquired were not affected by the subsequent appeal to the surrogate under section 13. The appeal authorized by this section is only as to the appraisement or assessment, not as to the right to collect and enforce a fair and proper assessment when made. The surrogate might, upon the appeal taken by these corporations, under this section, have reduced the amount directed to be paid, but he could not, after a final order decreeing nonexemption and directing the enforcement of the tax assessed, treat the main question of liability to taxation as res nova. The proceedings were therefore complete when the exemption acts of 1892 were passed, and the state then bad a judgment for the tax which was not impaired by these acts, even if the amount directed to be paid might have been reduced upon the subsequent appeal.