
    
      In re Vassar’s Estate.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1890.)
    Collateral Inheritance Tax—Exemption op Corporations.
    Under the New Vork collateral inheritance tax act, (Laws 1885, c. 483, as amended-by Laws 1887, c. 713,) taxing all property passing by will, etc., “to any person or persons, or to any body politic or corporate, ” other than certain specified relatives, etc., “or the societies, corporations, and institutions now exempted by law from taxation, ” the exemption of societies, corporations, and institutions extends only to-bodies which enjoy complete immunity from general taxation, as to all their property. Barnard, P. J., dissenting.
    Appeal from surrogate’s court, Dutchess county.
    Petition by Oliver H. Booth and others, executors of the will of John Guy Vassar, deceased, for appraisal of the amount at which certain legacies given-by said will should be assessed under the act taxing collateral inheritances. Laws N. Y. 1885, c. 483, as amended by Laws 1887, c. 713. The order confirming the report of the appraiser appointed thereon was affirmed on appeal to the surrogate. From the order of affirmance, the legatees, whose bequests were thereby held subject to tax, appeal.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      C. Swan and R. E. Taylor, for Vassar College, appellant. Allison Butts, for Vassar Brothers Hospital, appellant. John P. H. Tallman, for Vassar Brothers Home for Aged Men, appellant. Robert F. Wilkinson, for county treasurer of Dutchess county, respondent.
   Dykman, J.

This is an appeal from a portion of the order of the surrogate of Dutchess county, assessing a tax upon the legacies bequeathed to Vassar College, Vassar Brothers Hospital, and the Vassar Brothers Home for Aged Men, by the last will and testament of John Guy Vassar, deceased. The legacy under the same will to the John Guy Vassar Orphan Asylum was exempted from taxation by the surrogate, and there is no appeal from that portion of the order. All property which now passes by will, or by the intestate laws of this state, from any person who died seised or possessed of the same while a resident of this state to any person or persons, or to any body politic or corporate, other than to or for the use of the societies, corporations, and institutions now exempted bylaw from taxation, ig subject to a tax of $5 on every $100 of the value of such property. Such are the provisions of section 1, c. 713, of the Laws of 1887, amending chapter 483 of the Laws of 1885. The statute under consideration is new; but, so far as it has received judicial construction, the tendency has been to hold that the societies, corporations, and institutions exempted from the operation of the act to tax gifts, legacies, and collateral inheritances are those bodies only which enjoy complete immunity from taxation as to all their property. There must be an entire freedom from general taxation to entitle such institutions to exemption from taxation under this statute, and, as none of the appellants are entirely exempt, it follows that they are not within the exception to the general operation of the act. Partial relief from taxation is insufficient. Our conclusion is that the legacies are subject to the operation of the statute, and the order appealed from should be affirmed, with costs to be paid from the estate to the respondent.

Pratt, J., concurs.

Barnard, P. J.,

(dissenting.) Vassar College by its charter was authorized to take real and personal estate by gift or devise, the annual income of which should not exceed $40,000. Chapter 2, Laws 1861. By chapter 39, Laws 1862, the real and personal estate to the extent it is authorized to hold the same was exempted from taxation. This is not a limited exemption. The college can take the bequest, and be within the limit it is authorized to take, and then the exemption is general as to this bequest. The record shows that as to these proceedings the college can take the bequest, and still have only an income under $40,000 annually. As to the hospital, the evidence shows that to be exempt from the collateral tax. It has a lot and buildings where the sick are eared for. The land so occupied, and all its personal property, is exempted from taxation by chapter 298, Laws 1882. The gilt under this will is wholly of personal property. The exemption as to personal property is absolute, and it is not the less absolute in respect thereto because it might hold land subject to taxation because it was not used for the purpose of a hospital. The “Home for Aged Men” is also exempt. It is an almshouse. The mere fact that it charges a sum to a portion of those who feed at its table, and enjoy the shelter of its roof, does not destroy its character as a pure public charity. Northampton Co. v. Lafayette College, 18 Atl. Rep. 516; City of Philadelphia v. Pennsylvania Hospital, Leg. Int. Feb. 14, 1889, p. 70; Seminary v. Cramer, 98 N. Y. 121. All of its property is used in the lines of the charitable purpose of its incorporation, and the ultimate test of its character must be the result of its work as a whole. People v. Commissioners, 64 N. Y. 656; People v. Barber, 42 Hun, 27; Belts v. Betts, 4 Abb. N. C. 317. The order should, therefore, be reversed, With costs.  