
    CATLIN v. TRUSTEES OF TRINITY COLLEGE.
    
    
      N. Y. Supreme Court; Second Department, General Term;
    
    
      June, 1888.
    1. Taxes; collateral inheritance tax; exemption.] A legacy to Trinity College, an institution of learning chartered under the laws of Connecticut, and whose funds are exempted from taxation by a provision of its charter—Held,, subject to the collateral inheritance tax.
    2. The same.] Held, also, that legacies to a religious corporation and. to a missionary society, both of which are incorporated under the laws of this State, are subject to the tax.
    Submission on agreed statement of facts.
    Julius Gatlin, Jr., and others, executors of the will of Stephen M. Buckingham, united with the trustees of Trinity College of Connecticut, the Rector, Wardens, etc., of St. Paul’s Church in Poughkeepsie, N. Y. and George W. Chase, as county treasurer of Dutchess County, in submitting upon an agreed statement of facts the question whether legacies under the will to the corporations named, were exempt from the collateral inheritance tax.
    The facts material to the question determined, may be briefly indicated thus : The charter of the college contained the following clause :
    
      “ VIII. Resolved, That the funds which may at any time belong to the institution now incorporated, shall enjoy the like exemptions from taxation, and the institution itself and its officers, shall enjoy the same privileges and exemptions, as have already been granted, or may hereafter be granted, to Yale College, its officers, and its funds.”
    The general statutes' of Connecticut of 1888, claimed by the college to be a re-statement and re-enactment of previous statutes, contains the following clause :
    Sec. 3822. “ The funds and estate which have been or may be granted, provided by this State, or given by any person or persons to the President and Fellows of Tale College, Trinity College, or Wesleyan University, and by them respectively invested and held for the use of such institution, shall, with the income thereof, remain exempt from taxation.”
    The will gave an absolute legacy of $50,000 to _the college ; to the Hector, Wardens, etc., of St. Paul’s Church,, it gave $10,000, adding:
    “ The income whereof shall be applied to general purposes of the parish and maintenance of the worship of God therein, in accordance with the forms and lawful usages of the Protestant Episcopal Church in the United States, and to the charitable work of the Parish. And I make this-bequest in the hope and belief that the Church services may continue to be conducted in the Parish in their present simplicity.”
    The questions in difference were thus stated by the-submission:
    1. Is the said legacy of $50,000 to the defendant, “ The Trustees of Trinity College,” subject to a tax of five percent. under chapter 713 of the laws of the State of Hew York enacted in the year 1887 ?
    2. Are the plaintiff’s, as such executors and executrix, authorized to retain from the amount of said legacy of $50,000, five per cent, of the said amount, and to pay the same to the defendant, George W. Chase, as treasurer of Dutchess County, as for the tax provided for, in and by said Act of 1887 ?
    If the court find and decide that the aforesaid legacy of $50,000, to the trustees of Trinity College, is not subject to the tax of five per cent, under chapter 713 of the Laws of the State of Hew York, enacted in the year 1887, it is hereby stipulated that judgment may be entered herein, authorizing the plaintiffs, as executor aud executrix as aforesaid, to pay over the full amount of said legacy to the trustees of Trinity College.
    The questions as to the legacy to the church being similarly stated, it was added :
    If the court find and decide that the aforesaid legacy of $10,000 to the Rector, Wardens, and Vestrymen of St. Paul’s Protestant Episcopal OKurch, in the City of Poughkeepsie, is not subject to the tax of five per cent, under ■chapter 713 of the Laws of the State of Hew York, enacted in the year 1887, it is hereby stipulated that judgment may be entered herein, authorizing the plaintiffs, as executors and executrix of said legacy, to pay over the full amount of said legacy to said the Rector, Wardens, and Vestrymen of St. Paul’s Protestant Episcopal Church in Poughkeepsie.
    If the court find and decide that said legacies, or either ■of them are subject to said tax, then it is stipulated that judgment may be entered herein, authorizing the said plaintiffs, as executors and executrix as aforesaid, to retain the amount of tax found to be payable on said legacies or ■either of them, and to pay the same to the county treasurer of Dutchess County.
    
      Luke A. Lockwood (Lockwood & Hill, attorneys), for defendant, trustees of Trinity College.
    I. The question to be determined by the court and considered in this brief is whether the legacy of $50,000 to Trinity College is within this, statute and subject to this tax. We think it must be conceded: 1st. That this college comes within the meaning of the words “ body corporate ” in the act. 2nd. That the words “ now exempt by law from taxation,” means now exempt by the law of this State from taxation. We also think it will be found that the collegó comes within the words “ the societies, corporations and institutions now exempted by law from taxation.” The question becomes one, then, of construction of this statute, and involves the construction of the statutes which exempt the property in this State of “ societies, corporations and institutions ” from taxation. In construing the statute the intention of the lawmakers must be sought for (Hudson Iron Co. v. Alger, 54 N. Y. 173, 175).
    II. This college comes clearly within the language of the exempting clauses. The only provisions of statute which touch the exemption of this class of institutions, to wit, colleges, are found in §§ 1 and 4 of chap. XII., title 1, part 1, of the Revised statutes. Section 1, provides that “ all lands and all personal estate within this State, whether owned by individuals or by corporations, shall be liable to
    taxation, subject to the exemptions hereinafter specified.” •Section 4, specifies these exemptions and declares “ that the following property shall be exempt from taxation ” (Subd. 7, section 4). “ The personal estate of every incorporated ■company not made liable to taxation on its capital in the fourth title of this chapter.” Section 1 of the fourth title of this chapter reads : “ All monied or stock corporations, deriving an income or profit from their capital or otherwise, .shall be liable to taxation on their capital in the manner hereinafter prescribed.” Obviously, a college corporation is neither a “ monied or stock corporation,” and is not made liable to taxation on its capital by the fourth title of this •chapter. And further, it has no capital, and is, therefore, one of those incorporated companies the personal estate of which is exempted by subdivision 7 of section 4 above quoted. The words “ of every incorporated company,” in .subdivision 7, include every incorporated college.
    III. The college comes within the objects of the lawmakers in the use of the language of the exemption clauses. The objects which the law-makers had in view were: First. That “ all lands ” and “ all personal estate ” within this State, no matter who owned them, shall bear its just ■share of the public burden. This appears in the rule of taxation, the first section of chapter XIII., entitled “ Of the property liable to taxation.” Second. That certain properties not the source of income or profit to the owners, but of benefit and advantage to the public, should be exempted. This they did immediately after defining the terms “ land”' and “ personal estate,” in the second and third sections by the fourth section. These exceptions are as broad and comprehensive as the terms “ lands ” and “ personal estate ” used in the first section. And by the 7th subdivision of this section they exempted the personal estate of every incorporated company, other than those specified in section 1 of the fourth title, which were monied or stock corporations, deriving income or profit, which they declared should be taxed upon their capital. They first declared that all property within the State, with few exceptions, which “ are-inconsiderable and only tend to prove the universality of the rule,” should be held liable to taxation (People v. Com’rs. of Taxes, 23 N. Y. 196). Having enumerated the general rule of taxation, they proceed to provide the machinery for the assessment, collection and enforcement of this general rule, and from time to time as experience showed defects- and omissions in the procedure whereby the rule of taxation was evaded or failed of full enforcement or worked injustice, they adopted new devices to remedy the evils. They entitle chapter XIII. : “ Of the assessment and collection of taxes.” Title I. they entitle : “ Of the property liable to-taxation.” The rule of law declaratory of the property subject to taxation. Title II. “ Of the place and manner in which property is to be assessed.” The method of the assessment of the taxable property. Title III. “ Of the collection of taxes, the disposition to be made of the moneys collected and the proceedings in relation to unpaid taxes.” The proceedings for enforcement of payment of taxes and use to be made of the moneys when collected. Title IV. “ Regulations coneerning the assessment of taxes on incorporated companies and the commutation or collection thereof. Title V. “ Miscellaneous provisions of a general nature.” Title VI. “ Special and local provisions.” They first adopted the law or rule of taxation, then established a system of procedure for its imposition and enforcement. Their various acts, adopted from time to time afterwards witness their object to be the enforcement of their general rule of taxation by remedying injustice and defects and supplying omissions in the original system of procedure. They reached non-residents by assessing any person “ for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator.” Assuming that all personal estate within this State must be in the possession of some one, in one of the capacities specified. They also reached the properties of foreign corporations. “ Prior to the statute of 1855, chap, thirty-seven, the property of foreign corporations in the hands of agents diere (not specifically exempted), could be assessed and taxed as the property of the agent under the general provisions relating to the assessment of property in possession of agents” (People ex rel. Bay State, etc. Co. v. McLean, 80 N. Y. 254, 259). They reached corporations resident and non-resident by assessing capital, by tax on dividends or on gross receipts of business, or on moneys invested in business within this State, but in no case does it appear that they have attempted to tax any corporation, resident or non-resident, other than il all monied or stock corporations ” carrying on business for profit. And it does not appear that they ever attempted to impose a tax upon corporations whose sole purpose was the conferring of benefactions upon the public. It is confidently submitted that inability to reach any property within this State for the purposes of taxation under the system of procedure originally adopted for the imposition and enforcement of taxes, is no evidence that the lawmakers did not intend to include such property in their general rule of universal taxation. Their subsequent acts show conclusively that they did intend to include them within their general rule of taxation, and that they had and would in the future as occasion should arise, adopt measures to enforce the payment of taxes upon all personal estate within this State not specifically exempted (People ex rel. Hoyt v. Commissioners of Taxes, 23 N. Y. 225 ; See opinion Gilbert, J., in People ex rel. Bay State, etc. Co. v. McLean, 17 Hun, 205 ; Graham v. First Natl. Bk. of Norfolk, 84 N. Y. 393. 401; Boardman v. Board of Supervisors, 85 Id. 359, 361. Carrying out their object to exempt the personal estate of all corporations organized, not for pecuniary benefits, but for conferring benefactions upon the public, they in the same broad and comprehensive language, in subdivision 3, section 4, exempt every building erected for the use of a college . . . in subdivision 6 of section 4 : “ All stocks owned by the State or by literary or charitable institutions.” In section 325, chapter 409, Laws of 1882: “ Any monied or stock corporation deriving profit or income from its capital or otherwise, shall add to the dividend which shall be declared upon any stock owned by the State or by any literary or charitable society or institution, a sura equal to the assessment for taxes paid upon an equal amount of the stock of such corporation not exempt from taxation.” Section 326, Id.: “ The provisions of the sixth subdivision of the fourth section of the first title of chapter thirteen, of the first part of the Revised Statutes, whereby all stocks owned by the State or by any literary or charitable institution in monied or stock corporations are exempt from taxation, are hereby declared to be for the benefit of the State or the institution owning such stock, and not for the benefit of the ■said corporation.” It thus appears that colleges are within ■the exemption clauses so far as the intention of the lawmakers was indicated by the language used and the objects in view.
    IV. The exemption of the college comes within the motives of the lawmakers. This motive is known as the public policy of the State in respect to colleges and literary institutions, institutions of learning. That policy has always been to foster and encourage them. Indeed such has been the policy of every civilized nation. Lord Bacos" says: “ Colleges and schools of learning are to be cherished and encouraged, there to breed up a new stock to furnish the •church and commonwealth when the old stock are transplanted.” This was the motive of the lawmakers in making the exemption of colleges. The lawmakers well knew that colleges were not money-making institutions. They knew they were established, and are supported almost entirely by the .generous gifts of benefactors. They knew that they furnished the means of education at its minimum cost, even less,1 and that by scholarships, supported by endowments, they furnished a liberal education to worthy indigent students to such an extent that it may be safely said that “ res augustae domi ” no longer prevent any deserving youth from enjoying the advanages offered by our institutions óf learning. If it be said that the motive was the benefit to the people of this ¡State in the education of the youth of this State, the answer is that many of the youth of this State are educated in colleges in other States, and enjoy the full benefits of the endowments of those colleges. Of this fact the court may take judicial notice. To what extent such privileges and benefits are enjoyed by the youth of this State in colleges of other .States will appear in the appendix to these points. I think it safe to say that more of the youth of this State receive a •collegiate education in other States than in their own State. But no such narrow motives influenced the lawmakers. 'They were actuated by the motive of the ancient Homan whose words are the keynote of all modern benefaction- “ Homo sum et nihil humani a me alienum puto ” (Hollis v. Drew Theological Seminary, 95 N. Y. 166). The lawmakers, in formulating the statutes, knew, and fully appreciated the fact, that no State lines constrained the advantages furnished by a college. That all people everywhere were welcomed to its care and its culture.
    Y. This college can come into this State and take the legacy free o.f taxes under the law of comity (Hollis v. Drew Theological Seminary, 95 N. Y. 166. See also Sherwood v. American Bible Soc., 4 Abb. Ct. App. Dec. 227; Kerr v. Dougherty, 79 N. Y. 327).
    YI. If it be objected that this construction of the statute might lead to the investing of large sums of money in Hew York not subject to taxation, the answer is : 1st. The influx of money into this State, within proper limits, is for its good, and should be encouraged. 2d. The products of this money would be subject to taxation. 3d. Whenever such accumulation of exempt moneys in this State becomes detrimental to the public interest, the legislature can apply an adequate remedy, for the whole subject is within its power (People v. Fire Assoc. of Philadelphia, 92 N. Y. 311, 325).
    VII. If it be contended that the legislature had in mind, in enacting this statute, chap. 713, Laws of 1887, only domestic corporations, the contention, if established, proves-too much, for if the language, “ anybody politic or corporate,” means only any corporation domiciled in this State, then the gift to a foreign corporation would not be within the law, and would be exempt from taxation (Hollis v. Drew Theological Seminary, supra).
    
    VIII. The defendant, the Trustees of Trinity College,, are entitled to judgment, that the legacy be paid by the plaintiffs, free of tax.
    
      Martin Heermance (Wm. Morgan Lee, attorney) for defendant, Rector, Wardens, etc., of St. Paul’s Church of Poughkeepsie.
    I. The provisions of said act do not apply if, at the time of its enactment, this defendant was exempt from taxation on personal property.
    II. The personal estate of this defendant is exempt from taxation under 2 R. S. (7 ed.) 982, § 4, subd. 6. A church is pre-eminently a “ charitable institution ” (Hebrew Free School Assoc. v. Mayor, etc., 4 Hun, 446). A payment of the legacy to this defendant may be made and accepted in “stocks,” and if it would then be exempt, it is an unreasonable supposition that the law intends to exempt the personal estate of a charitable institution when such estate is invested and yielding an income, but intends to tax that estate if found temporarily uninvested and unremunerative.
    
      III. The personal estate of this defendant is exempted from taxation by subdivision 7. “ This exemption is a .general one and applies to every incorporated company not made liable to taxation on its capital by the fourth title of the statute above quoted. Hence if an incorporated company has no capital it would, under the foregoing statutes, be exempt from taxation upon its personal estate (People ex rel. Ithaca Savgs. Bk. v. Beers, 67 How. 219, 222).
    IV. This defendant is an “incorporated company ” within the meaning of the statute. Any narrower construction of the term would work an unnecessary inconsistency with the manifest policy of the law to exempt literary and religious corporations from taxation. The rule requiring strict construction of statutory exemption applies only to property used for purposes of private gain, a liberal construction, harmonizing with the policy of the law, is permissible and proper as to property used for literary, benevolent or religious purposes (People ex rel. American Geographical Socy. v. Tax Comm’rs, 11 Hun, 505; N. Y. Infant Asylum v. Supervisors of Westchester, 31 Hun, 116). In Matter of Miller, 5 Dem. 132, the appeal to the General Term of this department was decided without any reference whatever to the issue involved here (45 Hun, 244).
    V. This defendant is exempted from taxation by the •provisions of the statute above quoted, and therefore is not subject to a tax upon its said legacy under chapter 713 of the Laws of 1887.
    
      Julien T. Davies, Edward Lyman Short (Davies & Rapallo, attorneys) for the defendant, the Domestic and Foreign Missionary Society.
    I. The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America is a society or corporation now exempted by law from taxation, and therefore the legacy tó it is not subject to any collateral inheritance tax. (1.) The surrogates of Orange and Albany counties in the following cases have decided that similar societies came within the exception named in the act (Matter of Miller, 5 Dem. 132; Matter of McPherson, 5 Dem. 166). This latter case was affirmed at General Term and in the court of appeals. The decisions of these surrogates coincide with the view taken by the eminent law writer, Austin Abbott, in liis. note on the case of the Matter of Enston (19 Abb. N. C. 232). (2). The decisions of these surrogates are amply supported upon principle and authority. The legislature-intended that legacies to certain corporations should not be subject to the tax. The legislature did not in this law define the class of societies exempt, except by a reference-to the prior legislation. It points to some other law, and it is by the characteristics of that law that we are to determine-what societies arc embraced in the clause. In this State the-mode of legislation is almost universally the same, viz., to-direct the exemption to the real or personal estate. It is-not the person, whether an individual or a corporation, who is exempt, but his real or his personal estate, or both, e. g., a minister is not exempt, but portions of his property under certain circumstances (1 R. S. [7th ed.], p. 982). And with the other^ express exemptions, they are the buildings, the lots, the furniture, etc. ■ Hence in construing the clause,, “societies, corporations and institutions now exempt by law fi’om taxation,” if the form of our law of exemptions-be considered, as it must, it leads directly to the conclusion that a society like this, whose personal estate is expressly absolutely exempt, under all circumstances, is within the-clause. The tax is throughout the act treated as a burden chargeable on the legacy.- There is no tax in personam on the society (U. S. v. Allen, 9 Ben. 154, 157), and hence the-clause as to exemption is not to be interpreted according to-the person of the legatee and its immunities, but according to the freedom of its property from taxation, real or personal. (3). The policy of this State, as in most States, is to-exempt the whole or portions of the property of religious, charitable, benevolent and educational societies or institutions, and not-to exempt that of other corporations unless in some very special instances. And it is well settled- that missionary societies, foreign or domestic, are in legal sense charitable institutions (Maine Baptist Missionary Convention v. City of Portland, 65 Maine, 92). (4). Again the legislature clearly had in mind the ordinary class of societies which were the objects of testator’s bounties. The law of this State may exempt specially a few business corporations in the infancy of their great public undertakings, or by reason of some peculiar consideration, but such corporations are not the common objects of devises and bequests, and it was the latter societies chiefly to which the legislature referred.
    IT. Judgment should be entered declaring the legacy not subject to the tax, in accordance with the stipulation of the agreed case.
    
      O. D. M. Baker, attorney for county treasurer of Dutchess County.
    
      As to Trvnity College a/nd St. Paul’s Church.
    
    1. Neither of these bequests is within the exception of the statute. The expression “ exempted by law from taxation ” must be construed strictly (People ex rel. v. Commissioners, 19 Hun, 460, 463-4, and cases there cited). The rule of construction is that taxation applied to all property, and exemption must be by express and positive enactment and will not be allowed by implication (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506 ; Roosevelt Hospital v. Mayor, 84 Id. 108, 115 ; People ex rel. Manhattan Fire Ins. Co. v. Commissioners, 76 Id. 64; People ex rel. N. Y. Elevated R. R. Co. v. Same, 82 Id. 465 ; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 Id. 574, bottom page 585, and cases cited). The obvious meaning of the act is that only such “ societies, corporations and institutions ” as were at the date of the passage of the statute, June 25th, 1887, “ exempted by law from taxation,” that is,, from all taxation, upon real or personal property, should take free from this tax. This exception operated and was intended to operate only to exempt the “ societies, corporations and institutions ” created by or under acts, general or special, "which contained provisions whereby all property possessed by them was exempted from taxation. Among these “societies, corporations and institutions,” were: (1.) Cemetery Associations formed under the general act (chapter 133, Laws 1847, §§ 1-9). Exempted from all taxation by section 10, same act as amended (chapter 708, Laws 1869). (2.) Soldiers’ Monument Associations (chapter 273, Laws 1866). Exempted from taxation by section 6 of the act. (3.) Fire, hose, and hook and ladder companies, formed under chapter 397, Laws 1873, §§ 1-2 and 5. Exempted from taxations by section 11 as amended (chapter 250, Laws 1879). (4.) Public libraries (chapter 43, Laws 1796; chapter 458, Laws 1872). Exempted under Revised Statutes, p. 982, § 4, subd. 5. (5.) And the great number of orphan asylums, homes, hospitals arid charitable and relief societies incorporated under special acts which contained provisions exempting from taxation all property possessed by them. Roosevelt hospital is an example of the class (see chapter 4, Laws 1864, § 3). At the time of the passage of this act, “ societies, corporations, and institutions,” like these two defendants, were not exempted from taxation. The general taxation laws of the State provided: “ All lands and all personal estate within the State, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions hereinafter specified” (R. S. [7th ed.] p. 981, § 1). The expressions “lands” and “personal estate ” are by the statute defined to include all property (see §§ 2, 3). The statute by section 4, p. 982, limits the exemptions to: (1.) Property exempted from taxation by the constitution of this State, or the constitution of the United States. (2.) Lands belonging to this State or the United States. (3.) “Every building erected for the use of a college, incorporated academy or other seminary of learning, and in actual use for either of such purposes, every building for public worship, every school-house, court-house and jail, used for either of such purposes, and the several lots whereon such buildings so used are situated, and the furniture belonging to each of them.” (4.) “ Every poorliouse, alms-house, house-of-industry, and every house belonging to a company incorporated for the reformation of offenders or to improve the moral condition of seamen, and the real and personal property, used for such purposes, belonging to or connected with the same ” (R. S. p. 982, § 4). The defendant legatees do not come within any of these classifications. The only exception in favor of a college is “the building erected . . . and in actual use,” for its purposes. In Chegaray v. Mayor (13 N. Y. 220, 230), the court said of this provision : “ And it may be remarked that it is not the college . . . that is exempt, but every building erected for the use ” of the institution. The exemption in favor of a church society, is limited by the act to a “ building for public worship,” and the like remarks apply with equal force. It is assumed that exemption will not be claimed under any. other paragraph of the section, Unless it be: (7.) “ The personal estate of every incorporated company, not made liable to taxation on its capital in the fourth title of this chapter.’’ This refers to section 1, title 4, page 1036, and only applies to business corporations. It does not extend to a" church society or educational institution, because neither is an “ incorporated company ” within the meaning of the act, and they are always referred to in the ¡statutes as “ societies ” and “ institutions ” and specific provision has been made (paragraph 3. quoted ante), for both. The succession tax act recognized this statutory distinction by referring to them as “societies, corporations and institutions.” Either of these legacies, if in hand within this State by the legatees, would be “property” liable to taxation. With the single exception of the real and personal property of a public library (paragraph 5), none of the exceptions extend to all the'property of any of the organizations mentioned in the exempting section; but each one of these organizations remains liable to taxation upon all its property other than the buildings, houses, lots and furniture-particularly designated.
    II. The legacy to St. Paul’s Church is subject to the tax imposed by the act of 1887 in any event (In re Miller, 5 Dem. 132-138 ; aff’d, 45 Hun, 244).
    III. As to property in this State, Trinity College was-not “exempted by law from taxation.” The words “by law,” when used in the New York statutes, refer to some-duty imposed, obligation created, or privilege or immunity granted by some other statute of this State (Brinckerhoff v. Bostwick, 99 N. Y. 185, 190). A foreign corporation is not within(the purview of the corporation taxation statutes of this State, unless expressly mentioned (People ex rel. Bay State, etc. Co. v. McLean, 80 N. Y. 254-258). An exemption allowed by the laws of the State of Connecticut has no extra-territorial effect and confers no right upon Trinity College to take or hold property in this State,, free from taxation here. The law-making power of the-State of Connecticut is- supreme within "that State as to-what property, there situated, it will subject to, or exempt from, taxation. And the like power of this State is dominant here (State Tax on Foreign-held Bonds, 15 Wall. 300, 319). The law of the State of New York controls-the funds of the estate, and it has been held that “until the period for distribution arrives, the law of the decedent’s domicil attaches to the property, and all other jurisdictions refer to the place of the domicil, as that where the distribution'should be made. The will of the testator is proven-there, and his executor receives his authority to collect the-property by the recognition of the legal tribunals of that' place. The personal estate, so far as it has a determinate-owner, belongs to the executor thus constituted. The rights, of the donee are subordinate to the conditions, formalities and administrative control prescribed by the State in the interest of its public order” (Carpenter v. Commonwealth of Pennsylvania, 17 How. U. S. 456, 462). Exemption from taxation is conferred upon charitable and educational institutions by the State which creates them, under an implied agreement on the part of the organization exempted, that in consideration thereof it will aid the State in the directions indicated. The exemption is based upon the mutual contract or obligation of the two parties to it (Dartmouth College v. Woodward, 4 Wheat. 518; Home of the Friendless v. Rouse, 8 Wall. 430, 436). Here the parties to the exemption are Trinity College and the State of Connecticut. The State of New York is in no way connected with the contract or its advantages. Trinity College does not take this-bequest by any inherent right thereto, but through the laws of this State permitting the testator to pass it to the corporation. In allowing the corporation to take, the legislature may attach such conditions as it deems proper. “It may say to such institutions, yon may accept legacies bequeathed to you provided you pay for the privilege a certain per centum of the value of the property when it comes to your hands, but this premium you must pay for its enjoyment ” (Miller v. Commonwealth, 27 Gratt. 110 ; Eyre v. Jacob, 14 Id. 422, 424). No question of comity arises here, as that must be addressed to and determined by the law-making power of the State (People v. Fire Assn., 92 N. Y. 311). Jud-.m nt for the payment of the tax should be ordered, with costs.
    
      As to the Missionary Society..
    
    I. The suggestions in Gatlin v. Trustees of Trinity College, apply to this legatee defendant.
    II. The declaration of the succession duty act, that “all property which shall pass by will . . . other than to the societies, corporations and institutions now exempted by law from taxation,” should be subject to the tax, was intended to apply to the few organizations, which, at the time of the passage of the act, were by affirmative legislative enactment, expressly relieved from taxation on all property. The form of expression employed is apt for this purpose, and discloses the legislative intent that the “ societies, corporations and. institutions ” not so exempted should take subject to this tax.
    III. There is nothing in the charter of this legatee exempting any of its property, real or personal, from taxation. Xor does it come within any of the classifications of exemption enumerated' by the general statute (R. S. [7th ed.] p. 982, § 4). The real estate of the various “ societies, corporations and associations ” organized under the laws of this State is subject to taxation, unless the use of the buildings, etc., thereon, be of the character defined in subdivision three of the section, or the society is one of the kind specified in subdivisions four and five. The cases allowing •exemption from taxation in favor of socities have never gone-beyond this (See People ex rel. American Geographical Socy. v. Tax Comm’rs, 11 Hun, 505). Exempt because a '“ public library ” (N. Y. Infant Asylum v. Supervisors, 31 Hun, 116). Exempt because, a “ poor-house ’ or “ almshouse ” (People ex rel. Swiss Benevolent Socy. v. Comm’rs of Taxes, 36 Hun, 311, 314). Exempt because.an “ alms-house ” (People ex rel. Seminary v. Barber, 42 Hun, 27). Exempt because a “ seminary of learning.” Society real estate not exempt (Chegaray v. Mayor, 13 N. Y. 220; Trinity Church v. Mayor, 10 How. Pr. 138). Subdivision seven, when read in connection with section seven, shows that the expression “incorporated company” in the former, was intended to refer to the personal property of stock companies only. The restrictions in paragraphs three, four, five and six as to the kinds and extent of personal property of “ societies, corporations and institutions ” which should be exempt, are useless and absurd if all the persona) property of such organizations was to be exempted by subdivision seven; and there seem to be no decisions giving the latter provision any such effect. Judgment should be ordered in favor of the county treasurer for the payment to him of the amount of the tax with costs.
    
      Luke A. Lockwood (Lockwood & Hill), attorneys for trustees, in reply.
    I. The district attorney claims that only the lands and buildings in use by a college are exempt,, notwithstanding the exemption of stocks owned by literary and charitable societies (§ 4, subd. 6), and all personal property (subd. 7). Is it possible that the extent of the fostering care of this State towards colleges is the exemption of the lands and buildings in use? This would leave all the valuable- and expensive apparatus, machinery and appliances in the department of chemistry, physics, astronomy, and the extensive libraries and collections of minerals and rare objects in-all departments, illustrative of the various scientific branches, subject to taxation, to say nothing of the generous gifts of legacies by public benefactors, the income of which is applied solely for the maintainance of the establishment and the instruction of youth. No such narrow construction has ever been given to the exemption law, on the contrary (People ex rel. American Geographical Society v. Tax Comm’rs, 11 Hun, 505; People ex rel. Seminary v. Barber, 42 Hun, 27; Exemption 294 acres, and cases there cited; N. Y. Infant Asylum v. Supervisors, 31 Hun, 116). This case is outside of the mischiefs intended to be prevented by the rule requiring strict construction of exempting statutes (People ex rel. Swiss Benevolent Society v. Comm’rs of Taxes, 36 Hun, 311, 314).
    II. The district attorney, on behalf of the treasurer of Dutchess County, contends that the words “ societies, corporations, and institutions now exempted by law from taxation,” mean only such societies, corporations and institutions as were by law, June 25th, 1887 (the date of the passage of the original act) exempted from all taxation. It is. submitted that this contention is erroneous for the following-reasons : 1. This construction is against the plain and obvious meaning of the language. No society or corporation or institution is, as such, taxable, or, as such, exempt from taxation, the property only of societies, corporations or institutions are taxable, or exempt from taxation. The language used is the ordinary language employed in speaking-of those whose property is exempt as being themselves exempt from taxation. The very term “ now exempt by law from taxation ” solely refers the reader to the laws exempting the property of societies, corporations and.institutions from taxation. I find no statute by which any “ society ” or “ corporation ” or “ institution,” as such, is either taxed or exempted from taxation. The intention of the lawmakers in the Act of 1885 and Amended Act, 1887, was this: If the property, real or personal, the subject of the gift or devise, would, if owned by “ any society, corporation or institution,” be “ now exempted by law from taxation,” then such property shall be exempt from the tax imposed upon it by this act, otherwise not. It was not intended as an amendment to the exemption laws as then existing, nor as any enlargement of or restriction upon them. It was simply an enunciation of the purpose of the 'lawmakers to continue their fostering care of all the “ societies, corporations and institutions” which, by the benign policy of the State, had been the constant objects of its bounty. To say the lawmakers meant only to exempt public libraries, manifests a forgetfulness of the valuable libraries for public use in our colleges. And “orphan asylums, homes, hospitals, charitable and relief societies!” as .though the healing of the sick and the care of the destitute were greater objects of solicitude on the part of the State than the education of its youth and their preparation to do.its work in every sphere of. life, thereby making the estabment and maintenance of such benevolent institutions possible. And Cemetery Companies! Had they a greater desire to take care of the dead than to educate and elevate the living—to preserve the husks and neglect the kernel! And “ soldier’s monuments!” were they more anxious to preserve a record of the heroic deeds of the dead than to prepare the living to do them! In respect to “fire-hose and hook-and-ladder companies,” the district attorney is in error. The provision for exemption of their property is •simply from “ village tax,” provided villages so, vote. There ds- no “ society, corporation or institution ” in respect to which all of the property which may belong to it is exempted by law from taxation. There is a limit in every constituting act, and the limitation, generally, is in substance to. the taking and holding of property necessary for their use. All property held by them in excess of that limited in the constituting act is subject to taxation. The excess, unless and until the State exercises its right of escheat, is still the property of these bodies. The whole amount of their authorized holdings are inconsiderable. An exemption in general terms is of all the property of an institution for its legitimate purposes (Burroughs on Taxation, §§ 71, 72, and cases there cited). Colleges are as fully exempt from all taxation as the various bodies mentioned by the district attorney. 1st. Their buildings and lands in use (§ 4, subd. 1). 2d. Their stock (§ 4, subd. 6). 3d. All their personal estate (subd. 7).
    
      
      See Estate of McCoskey, p. 20, of this vol.
    
   Barnard, P. J.

By the first section of chapter -713, Laws of 1887, a tax'of five per cent, is imposed upon collateral inheritances. The defendant, St. Paul’s Church, is a religious corporation. A legacy is given to it. Another ■defendant, Trinity College, is an institution of learning, chartered under the laws of Connecticut. Another defendant is a missionary society, incorporated under the laws of this. State. Are these three corporations to take the legacy free from the collateral tax. The words of the collateral tax law exempt all bequests and legacies, “ other than to . . . the societies, corporations and institutions now exempted by law from taxation.”

As to the church, the revised statutes only exempt “every building for public worship . . . and the several lots where such buildings are situated and the furniture belonging to each of them” (§ 2, 2 R. S. 982 [Banks 7th ed]).

The church does not fall within the exemption of subd. 6 of that section: “All stocks owned by the State or by literary or charitable institutions.” The case shows no stock owned by the church. The section applies only to-stock in State corporations, and upon this stock the corporations were made to pay the tax to the State and to the literary and charitable institutions (chapter 195, Laws of 1885).

The church is not exempted under subd. 7 of that chapter : “ The personal estate of every incorporated company not made'liable to taxation on its capital in the fourth title of this chapter.” The fourth title, as it stood when that, fourth section was drawn, contained.pro visions for the taxation of corporations upon their capital. If the corporation made no profit, it was exempt (2 R. S. 404 [2 ed.], § 9) some corporations could commute (§ 11), and some were-exempted, unless an income of five per cent, was made- (§ 12).

Section 9, 10, 11, 12, 13 and 14 were repealed by chapter 456 of the Laws of 1857 and chapter 654, Laws of 1853 but the title shall stand as one affecting corporations liable because they-derive an income upon capital or otherwise. The exemption in subd. 7, only applied to the personal property of a corporation, which paid a tax on its stock, which was intended to include all its personal property. Churches were not included. The defendant church has-therefore no exemption from the tax.

The same conclusion must be reached in the case of the-missionary society. There is no law exempting them as-missionary societies, and the law (subd. 6 and 7 of § 4, above) gave them no exemption from a tax upon personal property, outside of stocks held in State corporations.

The case .of Trinity College is different in this. It is a foreign corporation, but is exempt from taxation by its-charter. The charter of Connecticut has no extra-territorial force. The collateral inheritance tax must be construed with respect to the State laws giving exemption from taxation. ■

All corporations now “ exempted by law ” from taxation-in June, 1887, is the test of exemption from the collateral inheritance tax. '

The defendant, Trinity College, does not come within this description. The legacies should therefore all be held "subject to the tax of five per cent.

Pratt, J., concurred.

Dykman, J., dissenting [after stating facts].

By the first section of chapter 713 of the Laws of 1887, so far as the same applies to this case, all property which shall pass by will from any person who may die siezed or possessed of the same, while a resident of this State, to any body politic or corporate, other than to the societies, corporations and institutions now exempted by law from taxation, shall be and is subject to a tax of five dollars on every hundred dollars of such property, to Be paid to the treasurer of the proper county.

Our conclusion is that the Trinity College and the St. Paul’s Protestant Episcopal Church fall under the exemption from this law, specified by a body politic or corporate,, other than the societies and corporations and institutions-now exempted by law from taxation, because the property of those corporations is. exempted by law from taxation.

Our determination is that the legacies of these two corporations are not subject to a tax of five per cent, under-chapter 713 of the Laws of 1887, and that the plaintiffs, as-such executors, are not authorized to retain from the-amount of such legacies such tax, and that judgment should be entered authorizing the plaintiff as executors, to pay over the full amount of said legacies to the two legatees named.

The same rule applies to the legacy to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America.  