
    In the Matter of the Appraisal under the Transfer Acts of the Property of Susan A. R. Moses, Deceased. Charles H. Gaus, as Comptroller of the State of New York, Appellant; Young Women’s Christian Association of Brooklyn and Young Men’s Christian Association of Brooklyn, Respondents.
    Second Department,
    May 26, 1910.
    Tax —transfer tax on bequest to educational institutions — bequest to Young Men’s and Young Women’s Christian Associations not taxable — bequest to Brooklyn Society for the Prevention of Cruelty to Children not wholly exempt — “ educational ” defined.
    The so-called transfer tax is said to be justified upon the theory that succession to property is a privilege inuring to those who did not help to earn it and very often do not deserve it. And, it seems, that the reason for the tax fails where a gift is made to a benevolent association which could not have helped to earn the property if it would, and which can be said to deserve it in view of the purposes of its organization.
    The Young Men’s Christian Association is an educational corporation within the meaning of section 221 of the Tax Law, as amended, exempting a testamentary gift to such corporations from a transfer tax.
    The word “ educational,” as used in said statute, is not restricted to the education given by a school, college or university, but means the cultivation of the. various physical, intellectual and moral faculties.
    The Young Men’s Christian Association is none the less an educational corporation because its charter states that its primary purpose is the improvement of the moral and spiritual condition of young men, and. moreover the Tax Law limits the exemption only where the corporation is “ exclusively ” organized for such purposes.
    The Young Women’s Christian Association is likewise exempt from taxation under the Transfer Tax Law as it is an educational corporation.
    But the Brooklyn Society for the Prevention of Cruelty to Children is not wholly exempt under section 221 of the Tax Law, but is only partially exempt, being “ organized * * * for the enforcement of laws relating to children.”
    For the purposes of; taxation the status of a corporation must be determined by its charter, not by what it may assume to do.
    Appeal by Charles H. Cans, as Comptroller of the.State of New York, from an order of the Surrogate’s Court of the county of Kings, entered in the said Surrogate’s Court on the 6th day of July, 1909, affirming an order entered on the 7th day of Hovember, 1908, fixing the transfer tax upon the estáte of Susan A. B. Moses, deceased,
    
      William W. Wingate, for the appellant.
    
      (Maries H. Judson, for the respondent Young Women’s Christian ■ Association of Brooklyn.
    
      Edward P. Lyon,- for the respondent Young Mén’s Christian Association of Brooklyn.
   Jenks, J.: .

This appeal challenges the decision of the surrogate of- Kings county that three corporations, the Young Men’s Christian-Association of Brooklyn, the Young Women’s Christian Association of Brooklyn,' and the Brooklyn Society for the Prevention of Cruelty to. Children, are exempt from transfer tax. The question arises upon the will of Moses, who died in 1906. Matter of Watson (171 N. Y. 256) does not control this case in-view" of an amendment, of the statute subsequent to that judgment.

Upon determination of such a question the policy of the law “ must be considered and should have great weight.” (People ex rel. Brush Electric Mfg. Co, v. Wemple, 129 N. Y. 552.) This charge, for convenience called a tax (Matter of Hamilton, 148. N. Y. 311), is-upon the right of succession, not upon property, made on the theory that succession is a creation of the law. (Matter of Dows, 167 N. Y. 231.) It may be regarded as a tribute to government that establishes and maintains that right. Logically enough, it appears that this tax in Borne' went into a peculiar treasury for the pay of the soldiery of Augustus. (Gibbon’s Decline & Fall of the Roman Empire, chap. 6.) And Forrero informs us that the law was resisted as legalized prescription and only brought to passage by an invocation of the alleged papers of the dead Julius Caesar—-a forgery. (Vol, 1, 301.) This tax has been advocated and'-justified upon divers grounds. Our Court of Appeals has justified it in that sue-cession is a privilege inuring to those who did not help to earn ” the property, “ and very often do not. deserve ” it. (Matter of Curtis, 142 N. Y. 219.) This justification for a tax which diminishes the property transferred has no ground in the casé of such a successor as is. this.corporation, for-it.could not have helped, to earn the property if it would, and it can be said to deserve it in view of the purposes of its organization. The principle of exemption, then, in such a case as is before us, rests upon good reason. Indeed, exemption has been asserted as'scarcely less than a duty in that these corporations are ■ alike the fruits- and. aids of good government. In Matter of Huntington (168 N. Y. 407) the court, per .Landón, J., say: “ The organized charities and benevolent agencies-which actually relieve human misery, .and labor in unselfish devotion to -impro ve the moral - and-physical condition of mankind, are alike the fruits and aids of. good government, and to exempt their property-^- usually the gifts... of the benevolent — from the burdens of taxation is scarcely less the duty than the privilege of the enlightened legislator,. Clearly this exemption' should be placed upon broad, equitable grounds, quite above the injurious imputations-sometimes resulting from, individual or special exemptions.” Collectivism has promoted and fostered these corporations until they are. almost to be regarded.,., as governmental adjuncts making for - the general good ..of the.-,, commonwealth. . < . ........

'The material-part of the statute- reads: “ But.- any property, devised or bequeathed , to -any person who-is a bishop, or. to any, religious, educational,-charitable, missionary, benevolent,, hospital or- -infirmary- corporation,- including- corporations organized, excfuryj sively for table or tract purposes, shall be exempted from.,'and:-.npl,¡; subject to, the provisions of this act.. There shall also be-exempted-;,, from, and not subject to, the provisions of this act personal property other than money or securities bequeathed to a corporation, or; -. association organized exclusively for the moral or mental imprpver - ment of men or women or for scientific, literary, library,. .patriotic,.■ cemetery or. historical purposes, or for the enforcement -of, laws, relating to children or animals, or for two.or more of.such purposes > and used exclusively for carrying out one ór more of,, such pur-, poses.” (Tax Law, § 221, as amd. by, Laws of, 19Q5, chap. 3.68.) Previous to the amendment by chapter- 368 of the Laws of 1905, charitable, benevolent, missionary,. hospital,, infirmary and educational corporations were placed in the limited- exempted-class of the statute.- In Matter of Watson (supra) the- court, per Werner,,1 J;, said.: “The- spirit of philanthropy and,charity will-not be fostered- or strengthened,, nor the State .enriched, by a system. of laws which permit an. opulent sectarian church to gather into its coffers, tax free, the legacies of its donors, -while the great humanitarian and practical charities of the age must first yield tribute to the State before they can take that which is given them to do their good works. It would almost seem as if the restoration of the ancient law of charitable uses by chapter 701,-Laws.1893 (Allen v. Stevens, 161 N. Y. 122), had been overlooked in ■ the subsequent codification of the statutes -relating to taxable transfers, and it is to be hoped that the inequities and inconsistencies of the latter may soon give way to a more liberal and just rule.” In People ex rel. Brush Electric Mfg. Co. v. Wemple (supra) the court say : • “ When a material change in phraseology is made many years, after the passage of the act, and after controversies and differences in regard to its construction have arisen, there is sometimes a presumption that the Legislature intended by the amendment to add a new provision to the original act, and to make it apply, to a case- to which it did not apply before.” Hay we not indulge in the presumption that the amendment in question was made in observance of these expressions of the' court in Matter of Watson (supra) and Matter of Huntington (supra) ? With regard to the fact that the amendment did not exempt wholly certain of these corporations, I think it may be said that the objects and purposes of religious, educational, charitable, missionary, benevolent, .hospital, infirmary, Bible' or. tract corporations, are more closely articulated with- .the functiqns of government for the amelioration of society, in .the spirit of practical altruism, than are scientific, literary, library;, patriotic,- cemetery, his-. torical corporations, or those exclusively organized for mental or moral improvement as those terms are. used-, in this, statute. Praise-. worthy as are the objects of the latter class, such corporations would not devote-money or securities as directly to the benefit of the people as would the organizations enumerated in the exempt class.

. I think that the Young Hen’s Christian Association falls within the definition of “ educational,” as the term is used in this statute. As the terms are all general, we cannot expect to find the definition as exact as if it were aimed directly at any particular corporation, Educational is not used in its meaning of instruction by schoolj college or university, which is a narrower or more limited meaning of the .word (Century Dictionary), but in. its broaden signification as the act of developing and cultivating the various physical, intellectual and moral faculties towards the improvement of the body, the mind and the heart. I am justified in this statement by the definition of the Century Dictionary, of Webster and of Worcester. In Matter of Francis (121 App. Div. 129), Robson, J., says that this word as used in this statute must be taken in its broad sense and would have included a library therein save for the express-specific definition contained in the limited exemption clause. The case was affirmed on the opinion below (189 N. Y. 554). The Supreme Judicial Court of Massachusetts in Mount Herman Boys’ School v. Gill (145 Mass. 139), discussing this word in a similar statute, say: “ Education is a broad and comprehensive term. * * * Education may be particularly directed to either the mental, moral or physical powers and .faculties, but in its broadest' and best sense it relates to them all.” And in Essex v. Brooks (164 Mass. 83) a free public library was held within this term “ educational ” in a similar statute. And in Matter of Mergentime (129 App. Div. 367) this court in its First Department has held that the Metropolitan Museum of Art was exempt as an educational corpora- • tion. (See, too, State ex rel. Henderson v. Lesueur, 99 Mo. 552; 7 L. R. A. 734.) The charter of this corporation states: “The object of this corporation shall be, primarily, the improvement of the moral and spiritual condition of the young men of Brooklyn, by means always appropriate to, and in unison with, the spirit of the gospel; and, secondarily, tlie improvement of their intellectual, physical-and social condition by the same means.” (Laws of 1869, chap. 737, § 2, as amd. by Laws of 1884, chap. 437.) Also : “ The board of directors of said corporation may make such by-laws and rules for the regulation and conduct of its business and affairs, the choice, powers and duties of its officers and agents, and the carrying of this act into effect, as are not inconsistent with its charter and the laws of this State.” (Id. § 7, as amd. by Laws of 1884, chap. 437.) And further: “ No intoxicating drinks or strong or lager beer shall be sold, used or allowed in or upon any part of the real estate owned or controlled by the corporation.” (Id. § 8, ás amd. by Laws of 1884, chap. 437.) While it is- true that the status of a corporation must be determined by the act of incorporation and not by proof of what it has assumed to do (Matter of White, 118 App. Div, 869), - yet I think that proof" may be received of the character of the work undertaken by that corporation.pursuant to its powers. The affidavit of the president of this corporation" states that it carries on its' work “ by religious meetings, educational classes' and rooms and conditions for the social' intercourse between young men and'that-for the accomplishment of the objects of said Association it maintains several branches.”

But it is contended that this corporation is witliin" the limited exemption class for the reason that it is a corporation Organized for the moral or mental improvement of men. In a sense'it is cer-' tainly a corporation organized for the moral improvement of men, that is, the objects of this corporation can be said, speaking to the result, the moral improvement of. men. But so it can be said of a religious corporation, -a missionary corporation, a Bible - or a tract corporation. Any corporation whose, activities would result in inculcating the rules of right conduct might .in a sense be said to be organized for the moral improvement of men. But it is to be borne in mind that the expression is not used in the statute to describe generally the object of a "corporation, but tó define-its status, just as- the words'benevolent, missionary, Bible, tract, literary, cemetery and the rest.. This is further indicated by-the word exclusively, so that a. corporation that falls within that term must be -exclusively organized for the moral'improvement of men. Can' it be said in any event that a corporation whose corporate objects are' the improvement of the moral and spiritual condition and -the intellectual, physical and social condition of men is defined by the term “ organized exclusively for the moral or mental improvement' of men \ ” In Lyon v. Milchell (36 N. Y. 235) the court, per Hunt, J., say : “ Morality is defined by.'Paley to be ‘ that science which teaches men their duty, and the reason of it.’ (Paley Mor. Ph., b. 1, c. 1.)" ‘ Morality is'the rule which teaches ns to live-soberly and honestly. It hath four chief virtues, .justice, prudence, temperance and fortitude.’ (Bp. Horne’s. Works, vol. 6, charge to clergy of Norwich.) ”" The same considerations apply to-the use of the word “mental.’”The learned counsel for the appellant invokes the rule of strict constructioii in considering exemptions from taxation. But that rule is not to be invoked to defeat the intention'of the lawmaker." (Suth. Stat. Const. § 356.) • Story, J., in United States v. Winn (3 Sumn. 209), says: “ Where the words- are general, and include various classes of persons, I know of no authority which would justify the Court in restricting them to one class, or in giving them the narrowest interpretation, when the mischief to be redressed by the statute is equally applicable to all of them. And where a word is used in a statute which lias various known significations,;! know of no rule that requires the Court to adopt one in preference to another .simply because it is more restrained, if the objects of tlie'statute equally apply to the. largest and broadest sense of the word. In short, it appears to me that the proper course in all these cases is to search out and follow the true intent of the Legislature, and to adopt that sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects' of the Legislature.” (Cited in Sutherland, p. 451.)

I think that the Young Women’s Christian Association.is exempt as within the term “ educational.”' It was organized under chapter 167 of the Laws of 1891. The 1st section thereof in part provides : “Any twenty or more women being citizens and residents of this State and being desirous of associating themselves for the improvement of the spiritual, mental, moral and physical condition of young women by meetings for- public worship, by academical instructions, by the maintenance of a public library and reading room, and by such other means not inconsistent with the objects of the association as its executive board may devise ” may become such a corporation. But I do not agree that the Brooklyn Society'for the Prevention of Cruelty to Children is within the wholly exempt class. We must seek the definitive term, and 1 think that we find it in the expression of the partly exempt class “ organized * * * for the enforcement- of laws relating to children.” The learned surrogate.in his illuminating, opinion (60 Misc. Rep. 637) writes.“It cannot be said to be among the corporations described as ‘ organized or used for the enforcement of laws relating to children.’ The proof in its belialf suggests no such design' or application, and, on the contrary, declares that the society is organized under the ‘Act .for the incorporation of societies for the prevention of cruelty to children,’ and is ‘ maintained to furnish aid to children who are not properly cared for.’ ” But the record before us but shows the affidavit of its secretary, who deposes only that it was organized-under'chapter 130 of the Laws of 1875 ; .that it is a legatee ; that it asserts exemption from the restrictions mentioned in chapter 3.19 of the Laws of 1848; that it claims exemption from the transfer tax, and that it does not own property exceeding in value $3,000,000, nor does its yearly income derived from its property exceed $250,000, As I have said, the status of the corporation must be determined by.the act of incorporation, not by what the corporation‘may.-assume to do, (Matter of White,, supra.) When we refer, to the said act, we find that the'powers beyond those commonly given to corporations and relating to their government, management and control are thus expressed: § 3 Any society so incorporated may prefer a complaint before any court or magistrate having jurisdiction for the violation of any law relating to or affecting children, and may aid in bringing the facts before such court or magistrate in any proceeding taken. § 4. All magistrates, constables, sheriffs and officers of police shall, as occasion may require, aid the society so incorporated, its officers, members and agents in the enforcement of all laws which now are or may hereafter be enacted,-relating to or affecting children.”. As the bequest to this society is $3,000, the society is not exempt.

The order must be; modified with respect to the Brooklyn Society for the Prevention of Cruelty, to Children, last named, and as so ' modified it is affirmed.-

IIirsohberg, P. J., Bure, Eici-i and Carr, JJ., concurred.

Order of- the Surrogate’s Court of Kings county modified with respect to the Brooklyn Society .for the Prevention of Cruelty to Children, last named, and as so modified affirmed, without costs.' 
      
       Revised into subsequent statutes.— [Rep.
     
      
       Revised into subsequent statutes. — [Rep.
     
      
      See §6, as amd. by Laws" of 1903, chap. 623, and revised into subsequent statutes.— [Rep.
     
      
      
         Amd, by Laws of 1886, chap, 30, and revised into subsequent statutes.— [Rep,
     