
    (96 App. Div. 128.)
    In re McMURRAY’S ESTATE.
    (Supreme Court, Appellate Division, Third Department.
    June 30, 1904.)
    1. Taxation—Inheritance Tax—Legacy Subject to.
    A legacy of less than $500, left to testator’s niece, who had occupied the relation of child of the testator since she was about two years old, exempt from the transfer tax imposed by Laws 1892, p. 822, c. 399, § 22, must be added to the" legacies left .to nephews and their wives, in order to make the aggregate estate exceed $500, for the purpose of sustaining a tax on the legacies to the nephews and their wives.
    Appeal from Order of Surrogate, Delaware County.
    Appraisal, under the act in relation to taxable transfers of property, of the property of John McMurray, deceased. From an order of the surrogate’s court setting aside an order made by it assessing a transfer tax, the State Comptroller appeals.
    Reversed.
    Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.
    
      Barna Johnson, for appellant.
    John A. Kemp, for respondent.
   CHESTER, J.

The decedent, John McMurray, died in Delaware county March 4, 1896. By his will, proven in that county March 8, 1896, he gave one-half of his property to his niece, Lizzie T. Cramer, and the other half to his nephew Charles F. Hunt and Gussie Hunt, his wife, and his nephew John A. Hunt and Sarah Hunt, his wife. The decedent and said Lizzie T. Cramer, for about 20 or 25 years prior to his death, had occupied the mutually acknowledged relation of parent and child, which’relationship began when she was about 2 years old. The value of the property of the decedent at the time of his death was $868.09, of which the share of Lizzie T. Cramer was $434.04, and the shares Of the two nephews and their respective wives were $108.51 each, aggregating $434.04. The order appealed from reverses an order imposing a transfer tax upon the shares of such nephews and their respective wives.

The only question presented upon this appeal is whether the share going to Lizzie T. Cramer, which is not taxable, because of its amount and of the relationship she bore to the testator, can be added to the shares of the nephews and their respective wives, in -order to make the aggregate estate transferred exceed $500. The claim of the respondent is that said Lizzie T. Cramer is a person ■“specifically exempted” from the provisions of the transfer tax law (Laws 1892, p. 822, c. 399), within the meaning of that term as used in section 22 of such law, and for that reason her share cannot lawfully be added to the shares of the nephews and their wives, in order to make the aggregate estate exceed $500, for the purpose of sustaining a tax upon the shares of such nephews and their wives. This question has been decided adversely to the contention of the respondent. Matter of Corbett’s Estate, 55 App. Div. 124, 67 N. Y. Supp. 46, affirmed 171 N. Y. 516, 64 N. E. 209; Matter of Hoffman’s Estate, 143 N. Y. 327, 38 N. E. 311; Matter of Garland’s Estate, 88 App. Div. 380, 84 N. Y. Supp. 630. While the share of Lizzie-T. Cramer is not taxable, yet under these authorities she is not a person “specifically exempt” from taxation, as is a bishop or a religious corporation, for the reason that, if the estate had been sufficiently large to bring her share within the provisions of the law, she would then have been a taxable person under it.

The order of the surrogate's court should be reversed, with $10 costs and disbursements. All concur.  