
    In the Matter of the Legacy and Collateral Inheritance Tax on the Estate of John L. Rogers, Deceased.
    
      (Surrogate’s Court, Orange County,
    
    
      Filed February 28, 1890.)
    
    Collateral inheritance tax—Proceeds of insurance bequeathed in PAYMENT OF DEBT NOT SUBJECT TO.
    The will of testator gave and bequeathed to one H. the benefit and proceeds of testator’s membership in an insurance association, “as far as his interest may appear and be proved,” and the balance to testator’s wife. Held, that whatever H. may receive would be in payment of his debt, and, therefore, is not a gift, legacy or property which has passed by will and is not subject to the collateral inheritance tax.
    Proceedings to collect collateral inheritance tax.
    
      D. A. Scott, for Mary E. Rogers, widow; Theodore Miller, for John B. Hillyer.
   Coleman, S.

By an instrument which has been admitted to probate as the will of John L. Rogers, who died a resident of this county, October 12, 1889, it is provided as follows :

“I hereby give and bequeath to J. B. Hillyer, of 74 Broadway, New York city, any and all benefit so far as his interest may appear and be proved. The balance and remainder to my wife * * * any and all benefit and moneys which may accrue or become due and payable at my decease under and by virtue of my membership in the Horthwestern Masonic Aid Association of Chicago.”

It appears that the testator in order to secure an indebtedness to J. B. Hillyer effected an insurance upon his life with the Masonic Aid Association, and there is now due Hillyer upon this indebtedness $5,163.39 as ascertained and reported by the appraiser appointed under chap. 713, Laws of 1887. It is claimed that this sum is not liable to the tax imposed by the act mentioned; that it is not a gift, legacy or inheritance within the meaning of that act.

The act is entitled, An Act to tax gifts, legacies and collateral inheritances, and the property made subject to tax by § 1 is, all property which shall pass by will or by the intestate laws oí this state from any person who may die seized or possessed of the .same.

It does not appear to whom the insurance would have been payable if there had been no will, and I do not suppose that is material in this proceeding, for, if the will had not contained the provision in favor of Hillyer, the wife would have taken it all under the will and the fund therefore would not be taxable.

Whether Hillyer takes anything under the will depends upon his being able to prove a debt. He takes nothing if there was no debt. So that while he may be entitled to receive something by virtue of the will he does not get it as a gift but as payment of a ■debt It may be that unless he had been provided for in this way by the will Hillyer would not have been' able to collect his debt, by reason of the terms of the contract of insurance, still as I have :said, whatever he may get, even by virtue of the will, is simply the payment of his debt. The words “ give and bequeath ” are employed by the testator, but I do not think that thereby any added force or character was given Hillyer’s claim and the use of them accomplished nothing more than the usual general direction in wills to pay debts and funeral expenses.

I am, therefore, of opinion that the money received by Hillyer is not a gift, legacy or inheritance, or. property which has passed by will from a person who has died seized or possessed of the same.

A bequest in satisfaction of a debt has been held to be within the definition of a legacy, Orton v. Orton, 3 Abb. Ct. App. Dec., 411, 414, but I doubt if the word “ legacy ” is used in so broad s. sense in this act. A legacy naturally implies bounty or benevolence, Mosely, 300; 3 Atkyns, 98, and. it has been held that so far as a legacy is applied to pay a debt it is no legacy, and to be a payment and not a gift 1 P. Wm., 299; 1 Salk., 155.

Having reached this conclusion, it is not necessary to consider ■whether, under the circumstances, the money being received as a benefit from an aid association after death of a member, it can properly be considered property that has passed “ from a person who may die seized or possessed of the same,” which I am in-' ■dined very much to doubt.  