Opinion
June, 1904.
Barna Johnson, for the appellant.
John A. Kemp, for the respondent.
The decedent, John McMurray, died in Delaware county March 4, 1896. By his will, proven in that county March 8, 1896, he gave one-half of his property to his niece, Lizzie T. Cramer, and the other half to his nephew, Charles F. Hunt, and Gussie Hunt, his wife, and his nephew, John A. Hunt, and Sarah Hunt, his wife. The decedent and said Lizzie T. Cramer, for about twenty or twenty-five years prior to his death, had occupied the mutually acknowledged relation of parent and child, which relationship began when she was about two years old. The value of the property of the decedent at the time of his death was $868.09, of which the share of Lizzie T. Cramer was $434.04, and the shares of the two nephews and their respective wives were $108.51 each, aggregating $434.04. The order appealed from reverses an order imposing a transfer tax upon the shares of such nephews and their respective wives.
The only question presented upon this appeal is whether the share going to Lizzie T. Cramer, which is not taxable, because of its amount and of the relationship which she bore to the testator, can be added to the shares of the nephews and their respective wives, in order to make the aggregate estate transferred exceed $500.
The claim of the respondent is that said Lizzie T. Cramer is a person "specifically exempted" from the provisions of the Transfer Tax Law (Laws of 1892, chap. 399) within the meaning of that term as used in section 22 of such law, and for that reason her share cannot lawfully be added to the shares of the nephews and their wives in order to make the aggregate estate exceed $500, for the purpose of sustaining a tax upon the shares of such nephews and their wives. This question has been decided adversely to the contention of the respondent. ( Matter of Corbett, 55 App. Div. 124; affd., 171 N.Y. 516; Matter of Hoffman, 143 id. 327; Matter of Garland, 88 App. Div. 380.)
While the share of Lizzie T. Cramer is not taxable, yet under these authorities she is not a person " specifically exempted" from taxation as is a bishop or a religious corporation, for the reason that if the estate had been sufficiently large to bring her share within the provisions of the law she would then have been a taxable person under it.
The order of the Surrogate's Court should be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements.