
    
      In re Van Kleeck’s Estate.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    Descent and Distribution—Legacy Tax—Exemptions.
    By bis will testator directed a fund to be set apart, and the income paid to his widow for life, and after her death his executor to pay “ to Christ Church, of Fough keepsie, 810,000 towards the building of a new church or the renovation of the present one. ” 2 Rev. St. N. Y. (7th Ed.) p. 982, § 4, subd. 3, provides that every building for public worship, and the lot on which it is built, and the furniture belonging to it, shall be exempt from taxation. Laws N. Y. 1887, c. 713, imposes a tax of 5 per cent, on legacies to corporations other than those “ now exempted by law from taxation. ” Held, that the legacy was not liable to the tax.
    Appeal from surrogate’s court, Dutchess county.
    In the matter of the estate of Edgar M. Van Kleeclc, deceased, the surrogate held a bequest to be used in erecting a building for public worship free from the collateral inheritance tax, and the county treasurer appeals.'
    Argued before Barnard, P. J., and Dykman, J.
    
      Martin Heermance, for appellant. Robert E. Taylor, for respondent.
   Barnard, P. J.

The testator died on the 6th of January, 1887. By his will he directed a fund of $40,000 to be set apart, and the income thereof to be paid quarterly to his wife during her life. The wife is still living. After her death the will directs his executor to pay “to Christ Church, of Poughkeepsie, $10,000 towards the building of a new church, or the renovation of the present one. ” Since the testator’s death the church has built a new church edifice, and has paid for the same, using tins remainder for this purpose by loan of such sum in anticipation of its payment over after the life-estate ceases. The question presented is whether this $10,000 is liable to the collateral inheritance tax. The Revised Statutes provide that every building for public worship, and the lot on which it is built, and the furniture belonging to it, shall be “exempt from taxation.” 2 Rev. St. (7th Ed.) p. 982, § 4. subd. 3. The collateral tax law (chapter 713, Laws 1887) imposes a tax of 5 percent, on all gifts by will to corporations other than such gifts when made to corporations “now exempted by law from taxation.” The church in question has no general exemption from taxation, and if the gift was an absolute one, and not for the purpose of building a new church or repairing the old one, the case would be embraced in Catlin v. Trustee, 113 N. Y. 133, 20 N. E. Rep. 864. The question, therefore, in this case is whether a gift fora new church, which is exempt, falls within the exemption of the collateral tax law, which exempts this corporation from taxation upon this new church from taxation. The church takes as trustee for a specific purpose, and there was no need of the testator directing bis executor to build the church in order to make the subject of the gift exempt as a church edifice, after the money has been put in it. A valid trust is not affected by the fact that the beneficiary is appointed trustee. When the church takes the money, it gets no title other than a trust title, until the money is put into a new building or used on the old. The spirit of the collateral inheritance tax is in favor of the exemption. Property is directed to be exempt from taxation, and when this $10,000 became property in the hands of the church it was a church edifice, and exempt “by law.” The judgment should be affirmed, with costs.  