
    (112 App. Div. 377)
    In re McAVOY’S ESTATE.
    (Supreme Court, Appellate Division, Second Department.
    April 20, 1906.)
    Taxation — Legacies—Bequests foe Masses.
    Testatrix, after directing that all her just debts and funeral and testamentary expenses be paid, bequeathed $800 to a priest, or, in the event of his death, to his successors as pastor of a certain church, to be used in saying 800 low masses for the repose of the soul of herself and three others. Held, that such bequest was not exempt from transfer taxes as funeral expenses.
    Appeal from Surrogate’s Court, Kings County.
    . Proceeding for the assessment of a transfer tax on a legacy bequeathed to Rev. Father Guhl by the will of Mary J. McAvoy, deceased. From an order of the Surrogate’s Court exempting the bequest, the Comptroller appeals.
    Reversed.
    Argued before WOODWARD, JENKS, GAYNOR, and RICH, JJ.
    Leonard B. Smith, for appellant.
   JENKS, J.

By paragraph 2 of her will the testator provided:

“I give and bequeath unto Rev. Father Guhl, of St. Alphonsus Church on Kent Street, Brooklyn Borough, N. Y. City, or in the event of his death, to his successors as pastor of said Church, the sum of eight hundred (800) Dollars, to be used in saying eight hundred (800) low masses, as follows: two hundred thereof for Henry J. Riley; two hundred thereof for Mary J. McAvoy; two hundred thereof for James A. McAvoy, and two hundred thereof for Jane Riley.”

The sole question presented is whether this sum of $800 is subject to a transfer tax. The tax law does not specially exempt such a bequest, and the legacy in question seems to me a transfer by will, and as such taxable. See Matter of Gould’s Estate, 156 N. Y. 423, 51 N. E. 287. I do not see how it can be held that such a provision is for funeral expenses. Certainly the bequest for masses to be said for others than the testator cannot be for the funeral expenses of the testator. So far as the masses to be said for- the testator are concerned, it is quite clear that she did not contemplate that the bequest was for her funeral expenses, inasmuch as she provided by the first paragraph of her will as follows: “I direct that all my just debts, funeral and testamentary expenses be paid as soon after my decease as may be.” See Matter of Black, 1 Con. Sur. 477, 5 N. Y. Supp. 452. A mass is not peculiarly a part of a funeral service, like unto the office for the dead. It >is the sacrament of the Eucharist, and a low mass is one said and not sung. (Cent. Dict.) In the religion of the Holy Roman Church masses are celebrated for the good of those who are dead, but in no sense is a mass so celebrated necessarily a part of the funeral service. I think that the conclusion reached by the learned surrogate in Matter of Black, supra, was correct.

It follows that the order must be reversed, and the order assessing the tax modified, by assessing a tax at the rate of 5 per cent, upon the legacy.

All concur.  