
    (73 Hun, 587.)
    In re MERRIAM’S ESTATE.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Legacy Tax—Bequest to United States.
    The legacy tax Is imposed on the right of succession, and not on the property, and therefore a legacy to the United States government is subject to the tax. .
    Appeal from surrogate’s court, Suffolk county.
    Appraisement of the estate of William W. Merriam for taxation under the collateral inheritance and legacy tax. From an order affirming an order assessing the cash value of the personalty at the time of testator’s decease at $79,284.60, and fixing the tax on the transfer thereof to the United States at the sum of $3,964.23, the United States and Clifford B. Ackerly appeal.
    Affirmed.
    Argued before BARNARD, P. J„ and DYKMAN and PRATT, JJ.
    Jesse Johnson, Dist. Atty., for the United States.
    James H. Tuthill, (George F. Stackpole, of counsel,) for appellant Ackerly.
    Timothy M. Griffing and Edward Hassett, for county treasurer of Suffolk county and comptroller of the state of New York.
   DYKMAN, J.

This is an appeal from an order of the surrogate’s court of Suffolk county which affirmed an order dated May 22, 1893, assessing the cash value of the personal property of the testator at the time of his decease at $79,284.60, and fixing the tax upon the transfer thereof to the United States government at the sum of $3,964.23. The United States appeals from an order dated September 5, 1886, denying the motion made by the United States of America to set aside and vacate the order of May 22,1893.

William W. Merriam, a resident of the town of Brookhaven, in Suffolk county, died on the 30th day of January, 1889, leaving a last will and testament, which was admitted to probate by' the surrogate of Suffolk county, and letters testamentary thereon were issued to Clifford B. Ackerly as sole executor. The testator devised and bequeathed all his estate, both real and personal, to the United States government. Upon the petition of the executor, the surrogate of the county appointed an appraiser to assess and fix the cash value of the property of the testator at the time of his death. The appraiser reported the net cash value of the property at the figures mentioned above, and on May 22, 1893, the surrogate, on motion, made an order confirming said report, and assessed the value of the testator’s property at the same amount as reported by the appraiser, and fixing the tax upon the transfer at the figures above named. As the real estate of the testator did not pass to the United States under the will, by reason of the invalidity of a devise of real estate to the United States government, that is not involved in this present controversy. In re Fox, 52 N. Y. 537.

We are required to decide, in this case, whether a legacy to the government of the United States is subject to the imposition commonly denominated the “collateral inheritance tax.” The determination of this point seems to be dependent upon the question whether the tax is a tax upon property, or upon the right of succession. The appellants insist that the charge is a tax upon property, and, planting this upon the fundamental principle of law that governmental property is ever exempt from taxation, insist that a legacy to the United States government cannot be diminished by the deduction of its succession tax. Contrariwise, the respondent contends that the tax is a tax upon the right of succession under a will, or by devolution in case of intestacy, or, in other words, a tax upon the privilege of acquiring property by will or inheritance, and is an impost upon the devolution of the estate. If the contention of the appellants-is sustained, then the appeal must prevail, for government property is always exempt from taxation. The language of the statute is this: “Section 1. Taxable Transfers. A tax shall be, and is-hereby imposed upon the transfer of any property real or personal. * * *” Laws 1892, c. 399, § 1. And according to the literal reading the tax is imposed, not levied, upon the transfer, and not upon the property. It is similar to an impost or duty or a tax laid by the government upon property imported into the country, or-to the old income tax. In "the case of duties upon goods, the property is appraised, and its value constitutes the basis of the impost, as it does under this law, and the same is true of income tax or an excise tax. The property is the subject of the appraisal, but the subject of the tax is the privilege, in all the cases. In the case of Wallace v. Myers, 38 Fed. 184, in the United States circuit, it was decided that, where the property of the decedent includes United States bonds, the tax may be assessed upon the basis of their value, and the tax is not imposed upon the bonds, but is merely a tax upon the privilege of acquiring property by inheritance; and in that case it was said, in the opinion of the court:

“Such a tax is no more one upon the bonds than an income tax is one upon the property out of which the income is derived, or an excise tax is one upon the articles manufactured or sold. The bonds are the subject of the appraisal, but the privilege is the subject of the tax. * * * The terms of the act of congress of June 30, 1864, (13 Stat. 285,) taxing legacies and successions, are quite similar to those of the present statute in respect to the-valuation for assessment. The subject-matter of the assessment under that act was held by the supreme court, in Scholey v. Rew, 23 Wall. 331, to be-the devolution of the estate, or the right to become beneficially entitled to-it; and the act was considered as taxing a privilege, and not property. In Virginia the highest court of the state has construed a similar statute as-imposing the tax, not upon the property, but upon the privilege of acquiring it by will or under the intestate laws. Eyre v. Jacob, 14 Grat. 422; Miller v. Com., 27 Grat. 110. The precise question now presented was considered' by the supreme court of Pennslyvania in Strode v. Com., 52 Pa. St. 181; and the court treated the statute, not as taxing property, but as a regulation of the transmission of the property of decedents, and upon that view held that government securities were properly included in the valuation of the inheritance upon which the tax was assessed.”

So it was also held in Re Swift, 137 N. Y. 77, 32 N. E. 1096, that the tax imposed by the collateral inheritance tax law is not a property tax, but a" tax upon the right of succession under a will, or devolution in case of intestacy. In Be Cullum’s Estate, reported in the combined official series of New York State Reports and Session Laws for October 14, 1893, (25 N. Y. Supp. 699,) it was decided in the surrogate’s court of the city of New York that a bequest to the government of the United States was liable to taxation under the laws relating to taxable transfers of property, and the opinion in that case is quite satisfactory upon this subject.

In view of the language of the statute, and the construction it has received, we feel bound to decide that the tax in question is not upon the property bequeathed, but upon the right of succession, and that the orders from which the appeals are taken should be affirmed, with costs. All concur.  