Opinion
July 1, 1921.
Lafayette B. Gleason, for the appellant.
Joseph F. McCloy, for the respondent.
The proceedings for exemption were based upon a petition made by the State Bank of Chicago, an Illinois corporation, which recited that Ellen Scully died on the 25th day of March, 1920, a resident of Cook county, State of Illinois; that the said Bank of Chicago was duly appointed administrator of her estate by the Probate Court of Cook county; that she was the widow of one John Scully, who died a resident of the State of Illinois on the 25th day of January, 1920, just two months before his widow died; that John Scully left a will bequeathing his entire estate to his widow and that the said Bank of Chicago was also administrator with the will annexed of the said John Scully's estate; that among the assets of the latter's estate were certain shares of stock of New York corporations which had been duly appraised and taxed as a part of his estate in proceedings in the Surrogate's Court of New York county in October and November, 1920.
Due notice of the application for exemption was given to the State Comptroller, who appeared in opposition, but filed no affidavits and offered no proof, nor made any claim in contradiction of the matters set forth in respondent's petition. Among other things the appellant contends that the petition has no probative value inasmuch as it appears that it is not verified. The appellant is technically correct in stating that there was no verification of the petition. It is signed by the "State Bank of Chicago, William C. Miller, Trust Officer," and following the signature we find instead of a verification an acknowledgment of the petition in the usual form appropriate to corporate acknowledgments. Since the petition is based upon information and belief without even stating any of the sources of information upon which the petitioner relies and is not sworn to, the question arises whether there was any legal proof before the court to warrant the order appealed from.
It is well settled that affidavits upon a motion of this kind are in the nature of testimony. ( Matter of Hyde, 218 N.Y. 55.) But since no affidavit was submitted by the petitioner, the petition had no probative value. It seems to us that the proper course will be to reverse the order and remit the proceeding to the learned surrogate to enable him to appoint an appraiser to take proof as to the facts and report to the court.
CLARKE, P.J., DOWLING, SMITH and PAGE, JJ., concur.
Order reversed and proceeding remitted to Surrogate's Court for further action in accordance with opinion.