
    Matter of the Appraisal of the Property of Margaret Kelly, Deceased, Under the Act in Relation to Taxable Transfers of Property.
    
      (Surrogate's Court, New York County
    
    
      Filed October, 1899.)
    1. Transfer Tax — Bequest to Bishop.
    The exemption from the transfer tax of any property devised or bequeathed “ to any person who is a bishop ” under Laws 1896, ch. 908, § 221, as am’d by Laws 1898, eh. 88, covers a bequest to an archbishop or to the cardinal archbishop in his official capacity.
    2. Same — Practice.
    Before the surrogate has acted upon a transfer tax appraisers’" report he may send it back to him for the introduction of additional proof.
    Motion by comptroller of the city of Hew York, to remit tax proceedings to the appraiser for the purpose of introducing testimony as to the status of Archbishop Corrigan in the Catholic church.
    Emmet R. Olcott, for motion; W. Hildreth Field & C. A. Deshon, opposed; William E. Gilhooly, for executors.
   Varnum, S.

Motion on behalf of the comptroller of the city of Hew York to remit tax proceeding to appraiser for the purpose of introducing testimony as to the status of Archbishop Corrigan in the Catholic church. The latter received, under the will of testatrix, a legacy of $200,000, which was regarded as exempt under the act by the appraiser. It would appear that the comptroller now seeks to review this decision, and, to enable him to do so, desires to introduce evidence showing that there is a difference between a “bishop ” and an “ archbishop,” and that the latter is not entitled to the exemption accorded to the former under section 221 of the Tax Law. Ho order has yet been entered on the report of the appraiser. A notice of appearance was filed on behalf of the archbishop, which included a claim to exemption from the tax. The appraiser does not in terms declare the legatee exempt, except inferentially, by omitting his name from the list of taxable interests. It is urged, on the part of the respondent, that a motion to remit the report back to the appraiser before the court has acted upon it is premature; that objections to the report can only be taken on appeal from the pro forma order entered on the appraiser’s report. While eases may arise where, even after the entry of the pro forma order, and after the time to appeal has expired, the surrogate may receive new testimony on the matter involved (Matter of Westurn, 152 N. Y. 93-103), the better practice is to have the appeal from the surrogate’s formal order based upon the proofs before the appraiser. But it has been by no means unusual in this court to remit a proceeding to the appraiser for the introduction of additional proof at this stage. It is within the discretion of the court. The provisions of the act referring to reappraisals in certain cases, on application to the Supreme Court, have no relation to this application and in nowise affect the jurisdiction of the Surrogate’s Court. Assuming, therefore, that such a remittal of the report to the appraiser to take further proof would be within my powers, I do not regard such a course either necessary or desirable in this case. Admitting that exemption in tax matters is not favored and cannot be established by doubtful implication, I do not consider that there is any serious question of construction in this case. The Transfer Tax Law (Chap. 908, Laws of 1896, as amended by chap. 88, Laws of 1898), provides, in section 221, that “ any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempt from and not subject to the provisions of this act.” The clear intent and object of the provision above quoted was to exempt the property held by religious corporations, whether held in the name of the corporation itself or (as is the well known custom in some religious denominations) in the name of one of the religious heads of the church or denomination. The statute uses only the word “ bishop,” but I have no question that it covers a bequest made to an archbishop or the cardinal archbishop, in his official capacity, as they are all, unquestionably, bishops, as well as the religious and temporal heads of their church. See Church of the Transfiguration v. Niles, 66 N. Y. St. Repr. 759; 86 Hun, 221.

Motion denied.  