
    (54 Misc. Rep. 201)
    In re DIDION’S ESTATE.
    (Surrogate’s Oourt, Erie County.
    April, 1907.)
    Taxation—Transfer Tax—Bequest for Masses.
    A bequest to a Roman Catholic Church for masses for the repose of the soul of testatrix is exempt from transfer tax under Transfer Tax Law, c. 908, p. 869, § 221.
    In the matter of the appraisal of the estate of Mary Didion. Appeal by comptroller from the decree confirming appraiser’s report.
    Affirmed.
    Orlin J. Colburn, for State Comptroller.
    John F. Mueller, for executrix.
   HART, S.

The testatrix, Mary Didion, after making special provison in her will for the payment of funeral expenses, by the second paragraph thereof makes the following bequests:

“I give, bequeath, and devise and direct that $200.00 be given to the Assumption Church' of Lancaster, N. Y., (so-called St. Mary’s Church) for masses to be read for the repose of my soul, and one hundred ($100.00) dollars be given to the St. Mary’s Church of Buffalo, N. Y., for the repose of my soul.”

The transfer tax appraiser refused to tax these legacies. This appeal is taken from a decree of this court, entered on the 12th of December, 1906, confirming the report of the appraiser. The attorney for the appellant contends that the above bequests are taxable, claiming that, “under the rules of the Roman Catholic Church, all bequests for masses go to the priest, individually, who says the masses, and do not go to the church as a religious or charitable body, or for the religious or charitable purposes of the church.” The attorney for the executrix has made proof by affidavit to the contrary. No attempt has been made, on the part of the executrix, to include the legacies in the schedule of funeral expenses of the testatrix; and the case is therefore to be distinguished from Matter of McAvoy, 112 App. Div. 377, 98 N. Y. Supp. 437.

The legacies are bequeathed directly to religious bodies; the provision for masses being- merely collateral and incidental. I am therefore of the opinion that the appraiser has committed no error, and that the decree as entered, exempting the legacies as provided by section 221 of the transfer tax law (Laws 1896, p. 869, c. 908) must be affirmed. Decree affirmed.  