
    In the Matter of the Transfer Tax upon the Estate of Mary J. McAvoy, Deceased. The Comptroller of the State of New York, Appellant.
    Second Department,
    April 20, 1906.
    Tax Daw —bequest to church for saying masses liable to transfer tax.
    A bequest to the pastor of a Eomau Catholic church and to his successors, as pastors, to he used in saying low masses for the soul of the testatrix and others named by her, is liable to a transfer tax. Such bequest cannot he considered to be for the funeral expenses of the testatrix.
    Appeal by the Comptroller of the State of Mew York from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 27th day of December, 1905, affirming an order entered on the 7th day of June, 1905, assessing a transfer tax upon the estate of Mary J. Avoy, deceased. .
    
      Leonard B. Smith [Frank Julian Price with him on the brief], for the appellant.
    No appearance or brief for the respondent.
   Jenks, J.:

By paragraph 2 of her will the testator provided: “ I give and' bequeath unto Bev. Father Gruhl, of St. Alphonsus Church on Kent street, Brooklyn Borough, M. Y. City, or in the event of his death, to his successors as pastor of said Church, the sum of eight hundred (800) Dollars, to be'used in saying eight hundred (800) low masses, as follows: two hundred thereof for Henry J. Biley; two hundred thereof for Mary J, McAvoy; two hundred thereof for James A. McAvoy, and two hundred thereof for Jane Biley.” The sole question presented is whether this sum of -$800 is subject to a transfer tax. The Tax Law (Laws of 1896, chap. 908, art. 10, as amd.) does not specially exempt such a bequest, and, the legacy in question seems to me a transfer by will and as such taxable. (See Matter of Gould, 156 N. Y. 423.) I do not see how it can be held that such a provision is for funeral expenses. Certainly the bequest for masses to be said for others than the testator cannot be for the funeral expenses of the testator. So far as the masses to be said for the testator are concerned, it is quite clear that she did not cdntemplate that the bequest was for. her funeral expenses, inasmuch as she provided by the 1st paragraph-of her will as follows: “I direct that all niy just debts^ funeral and testamentary expenses be paid as soon after my decease, as rnay.be.” (See Matter of Black, 1 Con. 477.) A mass is not peculiarly a part of a funeral service like unto the office for-the dead. It is the sacrament of the, Eucharist, and a low mass is one said and not sung. (Cent: Dict.) In the religion of the Holy Roman Church masses are celebrated for the good'of those who. are dead, but in no sense is a mass so celebrated necessarily a part of the funeral service. I think that the conclusion reached by the learned surrogate in Matter of Black (supra) was correct.

It follows that the order must be reversed, and the order assessing the tax modified'by assessing a tax at the rate of five per cent upon the legacy,

Woodward, Gaynor and Rich, JJ., concurred.

Older of the Surrogate’s Court of Kings county reversed, with costs, and order assessing the tax modified by assessing a tax at the rate of five per cent upon the legacy.  