
    Alexander McVean, as county treasurer of Monroe county, v. Judson F. Sheldon and another.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888.)
    
    Collateral inheritance tax—Laws 1885, chap. 483, § 1, as amended bv Laws 1887, chap. 713—Meaning of the word “ Estate.” -
    The legacies bequeathed by the will amount to one or two hundred dollars each. At the time of the testatrix’ decease she was possessed of an estate of the value of about $8,000. Held, the legacies being less than $500 are not subject to the tax. That the statute (Collateral inheritance tax) refers to and means the estate given to the devisees and legatees under the will, or the estate that descends to the heirs-at-law under the intestate laws of the state and does not mean the estate of the deceased person.
    Submission of a controversy upon facts agreed upon.
    
      Morgan & French, for pl’ff; Schuart & Sutherland, for def’ts.
   Haight, J.

—Mehitable Vary died at Mendon, Monroe county, N. Y., on the 24th day of August, 1886, leaving a last will and testament which has been duly proved and admitted to probate, in and by which she bequeathed to certain nephews and nieces, legacies of one and two hundred dollars each. At the time of her decease she was possessed of an estate of the value of about $8,000.

The question to be determined, is whether or not the legacies bequeathed by her are subject to the collateral inheritance tax, so-called.

. Section 1 of chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, in substance, provides that all property, which shall pass by will, or by the intestate laws of this state from any person, who may die seized or possessed of the same while a resident of this state, to any person or persons other than to or for the use of his or her father, mother, husband, wife, child, etc., shall be and is subject to a tax of five dollars on every hundred dollars of the clear market value of such property, and at and after the same rate for any less amount, to be paid to the treasurer of the proper county, etc., for the use of the state; and all administrators, executors and trustees shall be liable for any and all such taxes, until the same shall have been paid as directed; provided that an estate, which may be valued at a less sum than $500 shall not be subject to such duty or tax.

The question is as to the meaning of the proviso embraced in the statute. Does the word “estate,” occurring therein, mean the estate of the deceased person or the estate devised or bequeathed under the will ? •

The question thus presented is not free from difficulty. The word, as commonly used., refers to the estate of the deceased person. But, under the peculiar phraseology of the statute under consideration, we are inclined to the opinion that in this statute it refers to and means the estate given to the devisees and legatees under the will, or the estate that descends to the heirs-at-law under the intestate laws of the state. The act is to tax gifts, legacies and collateral inheritances in certain cases. What estate is subject to the tax? It is the estate or property that descends or is devised or bequeathed to any person or persons other than those specially excepted by the act. It is the property or estate, taken by any person or persons, that is taxed, and not the estate of the deceased. It is true that the administrators, executors and trustees are, by the express provisions of the act, made liable for the tax; but by referring to section 6 of the act it will be observed that the administrators, executors or trustees are directed to deduct the tax from the amount going to the legatee or person entitled to the property.

Section 13 of the act, among other things, provides that in order to fix the value of the property of the persons whose estate shall be subject to the payment of the tax, the surrogate shall appoint appraisers, etc. The word “estate,” as in this section used, must of necessity refer to the estate of those taking under the will or intestate laws, from the deceased person, and to some extent aids us in determining the meaning of the word as used in the prior section of the act.

This question has received consideration in the case of The Estate of Margaret McCready, Deceased (10 N. Y. State Rep., 696), and in The Estate of John W. Smith, Deceased (5 Dem., 90), in which cases the conclusion reached accords with our views.

In the Matter of the Estate of Mary E. Miller (5 Dem., 182), Coleman, S., reached a different conclusion. In considering the question he appears to have rested his conclusion upoh the meaning of the word estate as ordinarily and generally used, and does not consider the sense in which the term is used in the subsequent provisions of the act, or the connection or circumstances under which it is used.

We are, therefore, of the opinion that the legacies, being less than five hundred dollars, are not subject to the tax, and that judgment must be ordered for the defendants, with costs.

Barker, P. J., and Bradley and Dwight) JJ., concur.  