
    In the Matter of the Estate of Samuel Hall, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    'Tax — Transfer—Distributive share.
    An estate is subject to the transfer tax where the aggregate amount thereof equal the sum named in the statute, though the share of each distributee is less than such amount.
    Appeal from a judgment in favor of certain of the heirs and next of kin.
    
      Emmet R. Olcott, for app’lt; Charles Hickey, for resp’t
   Ward, J.

— Samuel Hall, of Niagara county, died on the 27th day of October, 1892, intestate. In December following, letters of administration were issued on his estate by the surrogate’s court of that county, which estate of real and personal property amounted to about $4,400. The estate devolved upon a brother and niece of the deceased, each having a share exceeding $500, and upon John Hall and six other collateral relatives, each of whom was entitled to a share of $211.32. Proceedings were taken before the surrogate to determine the amount of collateral inheritance tax to be paid by the several beneficiaries of this estate. The surrogate decided that these shares of $211.32, being less than $500, were not taxable, and that the aggregate of those shares exceeding $500 could not be taxed under chapter 399 of the Laws of 1892, and the sole question here for review is whether he was right in that conclusion. The legislature, by chapter 483 of the Laws of 1885, imposed a tax of five dollars on every hundred dollars on “all propperty which shall pass by will, or by the intestate laws of this state,’’ of residents of the state, or which should be within the state, to collateral relatives, with a proviso that an “estate ” which may be valued at a less sum than $500 should not be subject to the tax. This statute was repealed by chapter 713 of the Laws -of 1887, but the features of the act of 1885, above stated, were retained. And by chapter 215 of the Laws of 1891, an important amendment was made to the act of 1887, to the effect that a tax should be imposed upon the “ beneficial interest to any personal property ” that should “ pass ” to or for the use of any father, mother, husband, wife, child, etc., of $1 on $100 on an estate that should be valued at $10,000 or over. The question arose under the act of 1885, whether the five per cent, tax should be imposed upon the aggregate of the property of the deceased that went to the collateral beneficiaries, or the property that went to each beneficiary. The court of appeals, in Re Cager's Will, 111 N. Y. 343; 19 St. Rep. 497, decided in 1888, and in Be Howe, 112 N. Y. 100 ; 20 St. Rep. 477, decided in January following, held that the tax was not imposed upon the aggregate, but upon the specific shares that went to each claimant, so that a share less than $500 was exempt. This was the state of the law when the legislature enacted chapter 399 of the Laws of 1892, entitled “An act in relation to taxable transfers of property,” and which was intended as a revision of all the laws upon the subject, and which repealed them all. Section 1 provided that “ a tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over,” whether by will or intestate laws of a person dying in this state or owning property within this state not exempt, etc., and the tax should be five per cent, of the value of such property. The second section provides that when the “ property ” passed by any such transfer to the father, mother, husband, wife, child, brother, etc., of the deceased, such transfer of property should not be taxable,. “ unless it is personal property of the value of ten thousand dollars or more,” in which case it should be taxable at the rate of one per cent, of the value of the property. Section 3 provides that all taxes imposed by that act should be due and payable at the time of the “ transfer,” except in certain contingencies. Section 22, which is entitled, a section of “ definitions,” provides that:

“The words'1 estate’ and 1 property ’ as used in this act shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred to those not herein specially exempted from the provisions of this act and not as the property or interest therein, passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property, or interest therein, whether situate within or without this state, over which this state has any jurisdiction for the purpose of taxation. The word transfer ’ as used in this act shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein described.”' It is not assuming too much to say that the legislature, in making the revision of these statutes, and in adding important provisions in such revision, had in view the decisions of the court of appeals, and the doubts and controversies which led up to those decisions, and determined to define the law clearly upon the subject. In none of the previous acts had the legislature undertaken to define the terms it had used, but by the section last quoted, and the whole revised act, taken together, it seems to us that the judgment of the legislature is made clear; that its intention was to make the aggregate of the property that was transferred to the collateral relatives the test in determining the question of exemption. It is the “transfer” that is taxed, and not the “estate” of the beneficiaries respectively. It is the property as a whole as it descends from the decedent, and not the separate parcels into which it may be divided. This view is in harmony with the evident policy of the law, except in small estates of less than $500. In Re Hoffman's Estate, 143 N. Y. 327 ; 62 St. Rep. 245, the court of appeals considered the question whether, in the case of an estate in which there was a fund of $50,000 of personal property that had been bequeathed to several legatees, and where the amount received by one was only $9,235, the tax of one per cent, was collectible from the whole fund or upon the separate portions. It held that the aggregate of the fund was the basis upon which to determine the tax, and not the separate bequests, and, therefore, the legatee who received less than $10,000 was liable to be taxed for the amounts he received. The learned court in that case makes reference to other provisions of the statute, and to the conclusions that the court had reached, prior to the act of 1892, with reference to this subject; but the only question decided in that case is as above stated, and we must regard it as an authority for the position that we here assume, for certainly the same purpose is manifest in the act of 1892, — to tax the aggregate of the property transferred by the deceased, whether the tax falls under the one per cent provision or under the five per cent.

We are unable, therefore, to concur with the learned surrogate, and the order appealed from should be reversed, but without costs, and the proceedings remitted to the surrogate of Niagara county. All concur.  