
    
      In re Sweetland’s Estate.
    
      (Surrogate’s Court, Madison County.
    
    January 14, 1892.)
    Inheritance and Legacy Tax—Adopted Children.
    Though decedent lived in the family of G., her deceased sister’s husband, as housekeeper, on land of which she and her sister’s adult children were tenants in common, the relation of parent and child did not exist between decedent and said children during the life of G., their father, within the meaning of Laws 1885, c. 483, as amended, which imposes a tax on legacies to certain collateral kindred, unless the legatee is a person to whom testator had for 10 years before his death stood in the relation of a parent. In re Spencer’s Estate, (Sur.) 4 N. Y. Supp. 395, distinguished.
    Proceedings by the people for the collection of an inheritance tax against Eloyd Greenman and another, legatees of Mary Sweetland, deceased. Defendants petition for exemption from the tax. Petition denied.
    
      M. H. Kiley, for petitioners. J. A. Johnson, for the People.
   Kennedy, S.

This is a proceeding to show cause why a decree should not be made adjudging that the real and personal estate passing to the petitioners, Eloyd Greenman and Henry Greenman, nephews of deceased, is not subject to taxation under chapter 483 of the Laws of 1885, and the several acts amendatory thereto. The two nephews make this application for exemption from the payment of the tax on the ground that for a period of not less than 10 years prior to the death of their aunt, Mary Sweetland, they stood in the mutually acknowledged relation of parent and children. The facts upon which the application is based are as follows: Mary Sweetland was never married, and from the earliest recollection of the petitioners had made her hornea part of the time with her parents, and some of the time with others. Upon the death of Miss Sw.eetland’s mother her heirs agreed upon a settlement of her estate, by which the mother’s farm in Cazenovia became the property of Miss Sweetland and her sister, Mrs. Greenman, the mother of the petitioners. Some time previous to the death of Mrs. Sweetland, Mr. and Mrs. Greenman moved onto and carried on her farm for her, and after her death continued to occupy said farm till their death, since which time the two petitioners have occupied and managed said farm till the death of their aunt, receiving and using the entire avails of it without objection from Miss Sweetland, and paying her no compensation for the use of her half of the farm, and having no agreement with her in relation to it. Upon the death of their mother the two boys became the owners of an undivided half of the farm in question, and by the will of their aunt were made legatees of the other half of it, and all of her personal estate, amounting in all to about $4,000. Mrs. Sweetland died in 1879; Mrs. Greenman, July 28, 1879; Mr. Greenman, March, 1881; and Miss Sweetland, November 3, 1889, aged 60 years. Henry is now 38 years old and Eloyd 31, and they claim that the relation of parent and child existed between themselves and their aunt from the death of their mother, July 28, 1879, to the death of their aunt, November 3, 1889, a period of about 10 years and 3 months, notwithstanding the fact that their father did not die till March, 1881, leaving only a period of 8 years and 8 months for the relation to exist after the death of their father, provided such a relation did or could arise and have a legal existence by reason of any facts proven in this proceeding. The petitioners, during the life of their parents, have always lived at home with them, and assisted their father in farming, and never were engaged in business elsewhere upon their own account. After the father’s death the aunt and both nephews lived together in the same house for a few years, but subsequently Floyd married, and built a house upon the farm, and thereafter lived separate from the aunt, leaving Henry and the aunt in occupancy of the old home till her death. The application must be denied, because we think the law to be that, if a child continues to live at home with his parents after he has reached his majority, the relation of patent and child, theretofore existing, will be presumed to remain unsevered, until by decisive and affirmative acts on the part of the child or parent his freedom and emancipation from such relation is claimed and asserted by him. Assuming this to be the law, the fact that some relative or other person lives in the same family as housekeeper, or discharges many of the household duties ordinarily performed by a mother, or is treated and regarded as one of the family by a surviving husband and children who have reached their majority, is not of itself sufficient to create that parental relation which the law recognizes as necessary to justify an exemption from the tax in question. A less stringent and different rule should apply in case of minor children, because of their lack of legal right to fix their relation with others, their real or supposed lack of that judgment and discretion which is necessary to determine what is best, for them, their dependence upon others for their care, education, and maintenance, and the duty of the public, the courts, and of private individuals to provide for those whose helpless situation makes parental care necessary for them. So, too, there may be other special and peculiar circumstances arising from social, family, or business relations, or from other causes and conditions in life, which would satisfy the court that it had the legal right to infer the existence of parental relations. Again, if a father or mother dies, leaving children either over or under their majority, who have always lived at home, and the surviving parent remarries, such children and stepfather or stepmother, as the ease may be, if they continue to recognize the relation of parent and children to exist between them as ordinarily exhibited in families, the relation of parent and child would be presumed to exist until the contrary was proven; arid such child or children, in cases of a legacy from the stepfather or stepmother, would be exempted from the payment of the inheritance tax. Within the rules of law above stated, we think the petitioners would be exempt from the payment of any tax upon the legacy to them if their father had married his wife’s sister, and they had continued to live at home with their aunt as their stepmother for the period of 10 years in the manner in which they have lived; but we do not think the parental relation which the statute contemplates could commence in this case till the death of Mr. Greenman, a period of time too short to give the petitioners the benefit of the statutory exemption.

Having stated the rules of law applicable to proceedings of this character we call attention to some facts in this ease in support of the conclusion we have reached. It appears that Mr. Greenman occupied and worked the farm in question from the death of Mrs. Sweetland, in 1879, till his death, in 1881, without any agreement with Miss Sweetland in regard to rent, or payment in any form for the use of her half of it; and that during all this time she remained a member of the family, giving with Mr. Greenman and his children without any agreement .or understanding with reference to paying for her board; and upon his death the petitioners continued to carry on the farm till the death of their aunt, in the same manner as their father had done, rendering her no account of its avails, and paying her no compensation therefor, she continuing to live in the house in the same manner as she had done during the lifetime of Mr. and Mrs. Greenman. From the time Miss Sweet-land and sister became the owners of the farm upon the death of their mother there was no change in the manner of conducting the farm, or in the mode of living, as far as she was concerned. The aunt and the children each treated and cared for the other the same as they had always done. Ever since the nephews were born she had made her home principally with their parents, had eaten at their table and been one of the family for more than 30 years, and we assume she took an active interest in all family matters, and assisted in all the varied duties of the household. But the relation of parent and child requires something more than living in the same house and family under the circumstances shown in this case. Miss Sweetland and her sister were tenants in common of the farm, and, after the death of Mrs. Green man, she was a like tenant with her nephews, and as such we assume she was occupying the house, and was not there by reason of a license or permission from the other owners, but was in possession and living in the house by virtue of her legal right so to do, a right which could not be denied or taken from her. 3STo act or agreement is proven by the nephews that they or their parents were ever in the exclusive possession of the farm, and it will therefore be presumed that the residence of the aunt in the house, and all her relations with her nephews, were, so far as business affairs are concerned, as a tenant in common with them, and not the relation of parent and child at any time. Her life and theirs upon the farm were simply the assertion of the mutual rights which each had in the real property. The fact that she never received any of the avails of the farm would indicate that they were retained in payment for her board and services rendered in her behalf, because Mr. Greenman or her nephews would not probably have retained this income unless they had a right so to do for some purpose or reason mutually satisfactory to all. The counsel for the petitioners rely upon the opinion of this court in Re Spencer's Estate, (Surr.) 4 N. Y. Supp. 395, in support of the claim from exemption, but the facts of the two cases are so widely different that the conclusions of law therein maintained do not apply to this case.

The application of the petitioners will therefore be denied, and an order entered appointing an appraiser of the estate of Mary Sweetland.  