
    New York
    County.—Hon. RASTUS. S. RANSOM, Surrogate.
    February, 1889.
    Matters of Keith and Dailey. In the matter of the estate of Mary Ann Keith, deceased. In the matter of the estate of Emily G. Dailey, deceased.
    
    A society for the prevention of cruelty to animals, not exempt by its charter from taxation, is subject to the collateral inheritance tax.
    Motion to confirm the reports of an appraiser fixing the amount to be paid as a tax on certain legacies by the Society for the Prevention of Cruelty to Animals under the Collateral Inheritance Tax Act.
    Horace Russell, for the Society for the Prevention of Cruelty to Animals.
    
    Graham McAdam, for the comptroller.
    
   The Surrogate.

In each of these two estates a legacy was left to the American Society for the Prevention of Cruelty to Animals, which legacy the appraiser has reported as subject to the tax.

The society contends that it is not subject to the tax, upon the ground that it is a charitable corporation, and as such is exempt under subdivision 7 of section 4 of title 1 of chapter 13 of the Revised Statutes, which exempts “ 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 title 4 reads: “ All moneyed or stock corporations deriving an income or profit from their capital, or otherwise, shall be liable to taxation in the manner hereinafter prescribed.” The society claims to have no capital stock, to earn no dividends, to declare none, to pay no tax on personal property, and, therefore, holds that it comes within the purview of the act exempting certain corporations. It insists upon its charitable character, and argues with considerable rhetorical force, upon the magnificent -charity established by Mr. Bergh in supplying a much needed moral education to the community.

On the other hand, it is insisted that the society is not one of the “ Societies, corporations and institutions now exempted by law from taxation,” i. e., exempted as corporations and institutions not inferentially exempt,” but exempted by special act, or coming plainly and squarely under the general act.

This society was chartered by chapter 469 of the Laws of 1866, as amended by chapter 375, Laws of 1867, and the act passed March 8, 1871; but there is no provision in its charter exempting it from taxation. It can only be exempted by implication, if at all. The general “ act for the incorporation of benevolent, charitable, scientific and missionary societies,” was enacted in 1848, and undoubtedly relates only to human beings. Certain charitable institutions are exempt, but such institutions relate to human beings, and it is for their benefit and advantage that such institutions are formed and fostered and encouraged by the state by relief from taxation. The Society for the Prevention of Cruelty to Animals is a good and humane organization, and one worthy of encouragement and help; but it does not seem to have been the intention to exempt it from taxation. The fact that a portion of ■ the property owned by the society is exempt from taxation does not signify. This is a tax imposed upon the passing of property, a succession tax, and though the property might become exempt from general taxation after having passed, the legislature has an undoubted right to tax it in transitu, and evidently so intended.

The society seems to have slept upon its rights, for as far back as 1887, Surrogate Rollins assessed and fixed a tax upon a legacy left to the society, which tax was paid without objection, and has never been appealed from. Recently, also, a bill has been introduced into the legislature of this state exempting the society from taxation under this act. Neither of these two steps would have been taken, I think, had the society been satisfied of its exemption from this tax.

An order in each case should be handed up, confirming the report of the appraiser, and assessing and fixing the tax.  