
    Orange County.
    Hon. ROSWELL C. COLEMAN, Surrogate
    February, 1890.
    Matter of Rogers.
    
      In the matter of the estate of John L. Rogers, deceased.
    
    A bequest in a will in payment of a debt, and not as a gift, is not subject to the collateral inheritance tax.
    Under this rule where testator in his will gave and bequeathed to a credit- or for whose security testator had effected insurance on his life “ any and all benefits so far as his interests may appear and be proved ” in his membership in a mutual aid association such bequest was not subject to the collateral inheritance tax because the creditor and legatee took only to the extent of such debts as he could prove against the estate.
    Proceedings for the collection of the collateral inheritance tax on the estate of John L. Rogers, deceased.
    D. A Scott, for Mary E. Rogers, widow.
    
    Theodore Miller, for John B. Hillyer.
   The Surrogate.

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 ..... and 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 Northwestern 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 chapter 713 of the 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 section 1 is, all property which shall pass by will, or by the intestate laws of 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 Hill-yer’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. App. Dec. 411, 414, but I doubt if the word “legacy” is used in so broad a sense in this act. A legacy naturally implies bounty or benevolence. Lockyer v. Simpson, Mosely, 300; Clark v. Sewell, 3 Atk. 98; and it has been held that so far as a legacy is applied to pay a debt it is no legacy but is a payment, and not a gift. Rawlins v. Powell, 1 P. Wm. 299; Cuthbert v. Peacock, 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 inclined very much to doubt.  