
    In the Matter of the Estate of Charlotte G. S. Keech, deceased.
    
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    -Collateral inheritance tax — Alms-houses.
    An institution which does not wholly support its inmates gratuitously, hut almost invariably requires the payment of a substantial, entrance fee from each applicant for admission, or that they be nominated by patrons who have paid $1,000, and a transfer of all property then owned or subsequently acquired by such applicant, and which takes boarders who give satisfactory securky for the regular payment of their board, is not an alms-house, and is not exempt as such from the collateral inheritance tax.
    Appeal from order of the surrogate fixing the legacy tax ■upon a legacy bequeathed to the Baptist Home Society of the city -of Hew York.
    
      Mornay Williams, ' for app’lt; H. JS. Selmes, for comptroller, Tesp’t.
    
      
       Affirming 26 N. Y. State Rep., 433.
    
   Van Brunt, P. J.

The single question in this case arises under chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, providing for a state tax on collateral inheritances. The point at issue is whether the Baptist Home ¡Society of the City of Hew York is a society, corporation or institution, “ now exempted by law from taxation.”

The appellant is a corporation organized under the general ■statutes of the state of Hew York for the incorporation of benevolent, charitable, scientific and missionary societies and the acts amendatory thereof.

The particular business and objects of the society, as stated in its certificate of incorporation and reaffirmed in its constitution, Article H., are “ to provide the aged, infirm or destitute members ■of the Baptist churches with a comfortable residence, with board, clothing, skillful medical attendance, with their accustomed religious services, and, at their death, with respectable burial” Article III. of the constitution of the society provides as follows :

“ The payment of three dollars, or more, shall constitute a person an annual member of this society.
“ Each person on whose behalf fifty dollars is paid to this •society at one time, shall thereby be constituted a life member of the society, for his or her natural life.
“ Each person who pays, or for whom is paid to this society, $1,000, shall thereby be constituted a patron of the society for his or her natural life, and shall be entitled, during his or her life, to have one person at a time continuously maintained by this society at its home. Each person who pays, or for whom there is paid to this society, $2,000 or more, shall not only be constituted a patron for life, with the right to have one person at a time continuously maintained by this society at its home, but shall be entitled to devise the aforesaid right to any person during the life of such person,”

Article XIII of the said constitution is as follows:

“Applicants who shall be recommended by the pastor and deacons of the church to which they belong, or who shall give other satisfactory evidence of their good standing as members of a regular Baptist Church in the city of New York, for a period of not less than five years next preceding their last application, and who have no means of support, nor relatives who will provide for them, shall be received as inmates of the Home on the payment of $100. This entrance fee shall not be required of those who are presented by patrons In exceptional cases, under peculiar circumstances, the trustees may admit applicants who cannot comply with the provisions of this article.”

It appears from the affidavits of two trustees of the society that, “a number of persons have been admitted under article 13 of the constitution without any entrance fee being demanded of them, and a number more are admitted on the nomination of the patrons without paying entrance fee.”

The following provisions of the by-laws are pertinent to the present inquiry:

Article Y., § 1: “The trustees shall keep the‘building in repair, pay salaries and wages, and cause the objects of the society to be faithfully carried out.”
Sec. 6, par. 2: “ This committee ” (on applications), shall visit accepted applicants, and obtain their signature to a contract accepting the terms of admission, and to a will transferring to the home, for the consideration of one dollar, all the property of which they are or may be possessed.”

Article YI. — Terms of Admissiom.

Sec. 2. “Applicants who are in possession of property, or who-bring furniture or bedding to the home, shall be required to make written transfer of the same to the society on their admission.
“ They shall also be required, in the same manner, to transfer to the society property acquired subsequent to their admission, if they elect to remain thereafter inmates.”

If inmates leave the home for any cause, their entrance fee is in. no case returned to them. Section 3.

Sec. 4. “ Persons may be admitted occasionally as boarders,, though not to the exclusion of dependent applicants who desire a. permanent home.
“ The boarders will be desired to give satisfactory security for the regular payment of their board.”

The appellant claims that the Baptist Home is an almshouse,, and is therefore exempt from-taxation.

The provision under which immunity is claimed in the present case is found in R. S., pt 1, chap. 13, title 1, § 4, subd. 4; 8th ed.,, p. 1083, which relieves from taxation “ every poorhouse, almshouse, house of industry, and every house belonging to a company incorporated for the reformation of offenders, or improving the moral condition of seamen, and the real and personal property used for such purposes belonging to or connected with the same.” And cites the case of The Association for the Benefit of Colored Orphans in the City of New York v. The Mayor, etc., 104 N. Y., 581; 6 N. Y. State Rep., 477, as an authority sustaining the proposition claimed. The association, the plaintiff in the case cited, was incorporated “ to provide and maintain a place of refuge for colored orphans where they shall be boarded and suitably educated, and it was held that its building came within the fair meaning of an almshouse, which had been defined to be a house appropriated for the poor, because the building was appropriated wholly for the poor, who were colored orphans, and where they were to have a place of refuge, and to be boarded, clothed and suitably educated, etc., gratuitously. The court in its opinion further say: “ The plaintiff is performing a work of pure charity, and is taking upon its shoulders a portion of the burden that would otherwise fall upon the public."

The principle upon which this exemption from taxation is based seems to be because such an association in performing the duty for which it was incorporated takes a portion óf á public burden upon its own shoulders. In the case at bar the association not-only does not support its inmates gratuitously, but almost invariably demands the payment of a substantial entrance fee from each applicant for admission, and a transfer of all property then owned or subsequently acquired by such applicant, and express provision is made for the reception of boarders who shall give satisfactory security for the regular payment of their board.

It is true that persons nominated by patrons of the society are admitted free, but to become a patron requires the payment of at least $1,000 to the association, and only one person can be kept by a patron in the home at one time; thus the equivalent of an entrance fee and probably more has been received by the society.

It is also true that in some instances the payment of an entrance fee has been waived, but it would seem from the guarded way in which the statement is made, that the cases are not numerous.

The good offices, therefore, of the appellant society are not rendered wholly gratuitously; payments must be made as a rule to enjoy its benefits, and hence it does not come under the definition of an almshouse. Our attention is also called to the case of The People ex rel. The Seminary of our Lady of Angels v. Barber, 42 Hun, 27 ; 3 N. Y. State Rep., 367; affirmed 106 N. Y., 669 ; 11 N. Y. State Rep., 880, as sustaining the view that the receipt of fees or compensation from inmates does not exclude from the benefit of the statute. In that case it was held that a farm attached to a seminary of learning, all of whose products were used upon the premises to supply those engaged as teachers, students and servants, was exempt from taxation. This exemption arose from the statute exempting from taxation every building erected for the use of a college, incorporated academy or other seminary of learning, and the several lots whereon such buildings so used are situated, etc.

It will be noted that exemption does not depend upon the institution being open to the poor. The only condition being thdt its buildings shall be used for the purposes named in the statute. Fees may be charged sufficient to pay its expenses, without forfeiting its claim to exemption, the theory being that such exemptian is in furtherance of the policy of this' state to encourage, foster and protect corporate institutions of a religious and literary character, "Because of the beneficial influence by them exerted, and because they are necessary to the advancement of civilization and to the promotion of the welfare of society.

In the case at bar, however, the right to exemption rests upon a different basis, viz., that the association entitled to exemption is performing a work of charity and is taking upon its own shoulders a portion of the burden that would otherwise fall upon the public.

We have also examined the opinion in the case of St. Vincent’s Hospital v. The Mayor, etc., and without expressing any opinion as to the correctness of that decision it is sufficient to say that the facts differ radically from the case at bar, in that no one was refused admission because of unwillingness or inability to pay, whereas in the present case the rule was, pay or be excluded. It is true there are exceptions to the rule, but the exception does not abolish the rule.

Upon the whole case we think that the appellant affords a refuge for those who can pay and not for those who cannot, and therefore does not maintain an almshouse, which is defined to be a house appropriated for the poor.

The order appealed from should be affirmed, with costs.

Bartlett, J., concurs.  