In re the Estate of Benjamin , 1 A.D.2d 1020 ( 1956 )

In a proceeding under article 10-C of the Tax Law, a pro forma order was entered in the Surrogate’s Court, Putnam County, establishing the value of the decedent’s taxable estate and the amount of the estate tax thereon. Appellant, a devisee and legatee under the decedent’s will, appealed to the Surrogate from the pro forma order (Tax Law, § 249-x) urging that several estate assets had been undervalued and that this had resulted from the misconduct of the executor. The Surrogate made an order which affirmed the pro forma order and dismissed the appeal without prejudice to the right of appellant to object to the alleged irregularities of the executor in a proper proceeding; and such order of the Surrogate is the subject of the appeal to this court. Appellant contends that upon the appeal from the pro forma order she has an absolute right to a hearing at which she may introduce evidence, particularly to show that certain assets have been undervalued by the tax officer and that such undervaluation was the result of misconduct by the executor, the object of appellant’s contention being to prevent an estoppel against her proving the actual values of the estate assets in a subsequent proceeding. Order unanimously affirmed, without costs. The fact that certain estate assets were valued at specific amounts in the tax proceeding does not preclude appellant from enforcing the accountability of the executor as to all matters connected with his administration, notwithstanding that such enforcement might include proof that certain estate assets are of different values than those shown in the tax proceeding. The purpose of the tax proceeding is to fix the amount of the estate tax, and the order therein is res judicata only on the question of taxation. (Matter of Brown, 211 App. Div. 662 ; see Amherst Coll. v. Ritch, 151 N. Y. 282, 342-343; Matter of Lord, 155 Misc. 628; Matter of Burger, 123 Misc. 308, and Matter of Crawford, 85 Misc. 283, 290.) Present — Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.