
    
      In re Keith’s Estate. In re Dailey’s Estate.
    
      (Surrogate's Court, New York County.
    
    February 14, 1889.)
    Wills—Legacy Tax—Charitable Corporation.
    Rev. St. N. Y. pt. 1, c. 13, tit. 1, § 4, and. title 4, § 1, exempting the property of all incorporated companies, except moneyed and stock corporations, deriving an income or profit from their capital or otherwise, from taxation, do not exempt a legacy to a “ society for the prevention of cruelty to animals ” from the legacy tax, which is a tax only on the passing of property, and not on the property itself.
    The wills of Mary Ann Keith and Emily G. Dailey each gave a legacy to the American Society for the Prevention of Cruelty to Animals, and the question as to whether they were taxable under the collateral inheritance and legacy tax act, came before the surrogate, who heard both matters together. The society filed objections to the appraiser’s report.
    
      
      Graham, McAdarn, for comptroller. Horace Russell, for objector. W. W. Buckley, for B. W. Barlow. J. 8. Woodward, for C. P. Buckley. Brewster Kissam, for G. A. Dailey, executor.
   Ransom, S.

In each of these two estates a legacy was left to the American Society for the Prevention of Cruelty to Animals, which legacy the appraiser has reported as subject to the tax. The society contends that it is not subject to tax, upon the ground that it is a charitable corporation, and as such is exempt under subdivision 7, § 4, tit. 1, c. 13, Rev. St., which exempts “the personal estate of every incorporated company not made liable to taxation on its capital in the fourth title of this chapter. ” Section 1, tit. 4, reads: “All moneyed or stock corporations, deriving an income or profit from their capital or otherwise, shall be liable to taxation in the manner hereinafter prescribed. ” The society claims to have no capital stock, to earn no dividends, to declare none, to pay no tax on personal property, and therefore holds that it comes within the purview of the act exempting certain corporations. It insists upon its charitable character, and argues, with considerable rhetorical force, upon the magnificent charity established by Mr. Bergh in supplying a much-needed moral education to the community. On the other hand, it is insisted that the society is not one of the “societies, corporations, and institutions now exempted by law from taxation,” i. e., exempted as corporations and institutions.not inferentially “exempt,” but exempted by spe-. cial act, or coming plainly and squarely under the general act. This society was chartered by chapter 469, Laws 1866, as amended by chapter 375, Laws 1867, and the act passed March 7, 1871; but there is no provision in its charter exempting it from taxation. It can only be exempted by implication, if at all. The general “act for the incorporation of benevolent, charitable, scientific, and missionary societies” was enacted in 1848, and undoubtedly relates only to human beings, Certain charitable institutions are exempt, but such institutions relate to i.uman beings, and it is for their benefit and advantage that such institutions are formed and fostered and encouraged by the state by relief from taxation. The Society for the Prevention of Cruelty to Animals is a good and humane organization, and one worthy of encouragement and help; but it does not seem to have been the intention to exempt it from taxation. The fact that a portion of the property owned by the society is exempt from taxation does not signify. This is a tax imposed upon the passing of property,—a succession tax,—and, though the property might become exempt from general taxation after having passed, the legislature has an undoubted right to tax it in transitu, and evidently so intended. The society seems to have slept upon its rights, for as far back as 1887 Surrogate Rollins assessed and fixed a tax upon a legacy left to the society, which tax was paid without objection, and has never been appealed from. Recently, also, a bill has been introduced into the legislature of this state exempting the society from taxation under this act. Neither of these two steps would1 have been taken, I think, had the society been satisfied of its exemption from this tax. An order in each case s hould be handed up, confirming the report of the appraiser and assessing and fixing the tax.  