Opinion
January 8, 1908.
John L. Crandell, for the appellants.
Frank S. Becker, for the respondent.
The only question presented by this appeal is whether a legacy of $50,000 to the appellants should have been assessed at the rate of one or five per centum. It is conceded that the appellants are the children of Charles N. Harder, a son of Philip M. Harder and Caroline Nash Harder; that Caroline Nash Harder died January 28, 1856; that Philip M. Harder and the deceased were married in October, 1858, when Charles was about four years of age; that for more than ten years thereafter Charles N. Harder lived in his father's family with the testatrix, and that she stood in the mutually acknowledged relation of a parent during that time. It is also conceded that Philip M. Harder died August 15, 1904, and the testatrix died January 19, 1907.
The surrogate decided and decreed that the legacy to the appellants was subject to a transfer tax of five per centum under section 221 of the Tax Law (Laws of 1896, chap. 908) as amended by chapter 368 of the Laws of 1905.
Section 221 of chapter 908 of the Laws of 1896 provided that when property or any beneficial interest passes by will or the intestate laws of this State to any person to whom the decedent for not less than ten years prior to such transfer stood in mutually acknowledged relation of a parent, it shall not be taxable unless it is personal property of the value of $10,000 or more, in which case it shall be taxable at the rate of one per centum upon its market value. This section was amended by chapter 88 of the Laws of 1898, and by chapter 368 of the Laws of 1905 by adding thereto "provided, however, such relationship began at or before the child's fifteenth birthday and was continuous for said ten years thereafter, and provided also that the parents of such child shall be deceased when such relationship commenced."
There is no force in the contention of the appellants that the Legislature did not intend by this amendment to change the exemption and the amount of the tax if one of the parents of the child was living when the relationship commenced. The language of the amendment is clear, definite and certain, and while there may be no satisfactory reason for limiting the exemption or the rate of the tax to a case where both parents were dead when the relationship commenced, it is certain that the Legislature has done so and it is the duty of the courts to give it effect.
The order appealed from, therefore, should be affirmed, with costs to respondent Comptroller.
All concurred.
Order affirmed, with costs.