
    In the Matter of the Appraisal of the Property of Sarah A. Lankford Palmer, Deceased. Bishop Joseph C. Hartzell, Appellant; Bird S. Coler, as Comptroller of the City of New York, Respondent.
    
      Inheritance tax — a bequest to a bishop or his lining successor is exempt — the non-residence of the bishop is immaterial — a perpetual ecclesiastical corporation not recognized,.
    
    A bequest “ to Bishop William Taylor, or his living successor, to be used in his African mission work,” is, in the event of William Taylor’s death, a gift to “his living successor” personally, and not to a corporation sole in its ecclesiastical and official capacity, and is exempted from taxation under the Taxable Transfer Act of 1892 (Ohap. 899), by that provision of such act which exempts from the tax “any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation.”
    The fact that the “ living successor” is a resident of New Jersey and not a resident of New York, and, consequently, is not a domestic bishop, does not change the rule.
    The State of New York does not recognize the existence of any ecclesiastical office, the result of which is to give to the holders of it the right of perpetual succession, or any other rights similar to those which are enjoyed by corporations.
    
      Appeal by Bishop Joseph' C. Hartzell, a beneficiary under the . last will and testament of Sarah A. Lankford Palmer, deceased, from an order of the Surrogate’s Court of the county of New .York, entered in said Surrogate’s Court on the 24th day of November, 1897, affirming an order of the surrogate of the county of New York, entered in said Surrogate’s Court on the 2d day of April, 1897, determining the cash value of the estate of the said Sarah A: Lankford Palmer, deceased, and the amount of the tax to which the same was liable under the Taxable Transfer Act (Laws of 1892, chap. 399), and imposing a transfer tax upon the property bequeathed to the appellant.
    
      Lemuel Skidmore, for the appellant.
    
      ' E. R. Olcott, for the comptroller of the city of New York, respondent.
   Rumsey, J. :

Mrs. Sarah A. L. Palmer died on the 25th of' April, 1896, and her will and codicils were admitted to probate by the surrogate of. the county of New York, of which she was a resident, on the 18th of August, 1896. Among the bequests contained in theni was "one of three-sixths of the residue of her estate to Bishop William Taylor or his living successor, to be used in his African Mission work.” The sum thus bequeathed amounted to $28,438.99, upon which a tax was imposed of ' $1,421.95 pursuant to the provisions of the Collateral Inheritance Tax, so called. From the order imposing that tax this appeal is taken. The statute by which the tax was imposed is chapter 399" of the Laws of 1892. That statute was amended in the month of May, 1896, but the amendment took effect after Mrs. Palmer’s death, and, therefore, the rights of the parties are to be determined by the condition of the law before the amendment was made. As the law stood at the time of Mrs. Palmer’s death,' a tax was imposed upon legacies to persons not relatives of five per cent upon the value of any legacy bequeathed, but. the statute exempted from the tax “ any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any .religious corporation.”

Before the death of Mrs. Palmer, Bishop William Taylor died, and. it is conceded that the appellant, Joseph C. Hartzell, is his living successor and is a bishop and is entitled to this legacy. He claimed before the surrogate that he was exempt from the tax, because of the fact that he was a bishop. This claim was resisted by the comptroller and overruled by the surrogate who imposed the inheritance tax upon his legacy. The statute is plain : Any property bequeathed .to any person who is a bishop is exempted from and not subject to the tax imposed by chapter 399 of the Laws of 1892. The appellant is clearly within that act, as literally construed. The respondent, however, seeks to take this legacy to the appellant out of the exemption, for the reason that the appellant is not a domestic bishop; by which as we understand it he means that, although he is a bishop, he is a resident of Hew Jersey and not a resident of the State of Hew York.

He contends in the first place that the legacy to Bishop Hartzell was not a personal gift to him, but was in trust to be used for certain eleemosynary purposes. He argues from this that Bishop Hartzell took this in his ecclesiastical and official capacity, and that as to this legacy he stands as a corporation sole and not as a person. Relying upon this proposition,, he insists that this exemption is within the rulé laid down by the Court of Appeals in The Matter of Balleis (144 N. Y. 132), in which it is held that an exemption from this tax of property bequeathed to any religious corporation only applies tt> religious corporations created by and existing in the State of Hew York. But we think that this case in not within either the reasoning or the reason of the rule laid down by the Court of Appeals in the case just cited. The Court of Appeals said in that case that “ a statute of a State granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the State and over which it has the power of visitation and control. * * * The Legislature in such cases is dealing with its own creations, whose rights and obligations it may limit, "define and control.” But that reasoning does not apjfiy to the case at bar. The office of bishop, by virtue of which this legacy descended to Bishop Hartzell, is not created by the State, nor does the State have any power of visitation or control over the person who holds it, nor any power of direction over the manner in which he shall perform his duties. So far as the State is concerned, the office of bishop is a mere status, giving, no rights and imposing no legal liability upon the possessor of- it, and. the designation of one as a bishop is of no more legal importance .than as though "he were designated as a doctor of medicine or a married man. For that reason the case in the Court of Appeals just cited is not "applicable.

Hor do we agree with the ¡claim of the respondent that Hartzell is to be regarded as a corporation sole, within any rules of law, by reason of which the ease in the Court of Appeals cited above could be made applicable, or that this legacy is anything more than ameré personal gift to one who occupies a certain position., The State does not recognize the existence of any ecclesiastical office, the result of which-.is to give to the holders of it the right of perpetual succession or any other right ¡similar to: those' which are enjoyed by corporations. The recognition of any such corporate rights arising out of the holding of an ecclesiastical office'is entirely at variance, with our legal notions, and no. suCli rights can exist unless they are created by statute. The statute gives, no such rights to one because he holds the office of a bishop. Any designation of a person by that name is legally a. mere clesorvpUopersonm., and whatever rights' are given to him thereby are ¡mere personal rights which are tó be enjoyed by him in his personal capacity and used by him according to the form of the gift, precisely as though they were given to any one else who, in law, is a private person. The fundamental proposition, therefore, of the respondent in. this, case fails, and for that reason, as well as - for the reason given above, we think that the legacy to Bishop Hartzell was within the exemption of theAtatute and that the surrogate erred in imposing ap inheritance tax upon it..

The order of the surrogate must, therefore, be reversed, with costs.

Van Brunt, P. J., Barrett and McLaughlin, JJ., concurred.

Order reversed, with costs.  