
    In the Matter of the Will of John Guy Vassar, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Collateral inheritance tax—Exemptions.
    To entitle societies, corporations and institutions to exemption from the collateral inheritance tax, they must be entirely free from general taxation. Partial relief from taxation is insufficient.
    3. Same.
    Vassar College, The Vassar Brothers’ Hospital and The Vassar Brothers’ Home for Aged Men are not entirely exempt from taxation, and legacies to them are subject to the operation of the statute.
    (Barnard, P. J., dissents.)
    Appeal from portions of an order of the surrogate of Dutchess, county assessing a tax upon certain legacies.
    
      
      G. Swan and B. F. Taylor, for app’lt, Yassar- College; Allison Butts, for app’lt, Yassar Brothers’ Hospital; John P. H. Tollman, for app’lt, Yassar Brothers’ Home for Aged Men; Robert F. Wilkinson, for resp’ts.
   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 Yassar College, Yassar Brothers’ Hospital and the Yassar Brothers’ Home for Aged Men by the last will and testament of John Guy Yassar, deceased.

The legacy under the same will to the John Guy Yassar 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 seized 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 by law from taxation, is subject to a tax of five dollars on every hundred dollars of the value of such property. Such are the provisions of section 1 of chap. 713 of the Laws of 1887, amending chap. 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 respondents.

Pratt, J., concurs.

Barnard, P. J.

(dissenting).—Yassar 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 % Laws of 1861. By chapter 39, Laws of 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 records 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 cared for. The land so oecupied and all its personal property is exempted from taxation by chapter 298, Laws of 1882. The gift 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 County v. Lafayette College, 46 Legal Int., 423; City of Philadelphia v. Penna. Hospital, Legal Int., February 14, 1890, p. 70; Temple Grove 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 of Taxes, 64 N. Y., 656; People v. Assessors, 42 Hun, 27; 3 N. Y. State Rep., 367; Betts v. Betts, 4 Abb. N. C., 317.

The order should therefore be reversed, with costs.

Order affirmed, with costs to be paid from estate to respondents.  