
    In the Matter of the Appraisal of the Estate of John H. Fisher, Deceased, under the Acts in Relation to Taxable Transfers. Otto Kelsey, as Comptroller of the State of New York, Appellant; Sylvanus H. Nye and Hester M. Nye, as Administrators, etc., of John H. Fisher, Deceased, Respondents.
    
      Transfer tax—the interest passing from an intestate to'his brothers and sister is subject to the tax where the entire estate, real and personal, exbbeds in value §10,000.
    A decedent, who died intestate October 25, 1903, left surviving him as his next of kin one sister, two brothers, and four nephews and a niece, the children of a deceased sister. The value of his entire estate, real and personal, after payment of expenses of administration was $10,122.46, of which one-fourth passed . to-each of the intestate’s two brothers and to his sister and the remaining one-fourth to the four nephews and the niece.
    
      Held, that section 221 of the Tax Law, as amended by chapter 41 of the Laws of "1903, which took effect March 16, 1903, did not operate to exempt from taxation the shares passing to the testator’s sister and brothers, and that such shares were subject to a tax of one per cent;
    That the only change effected by the amendment of 1903 was that, in estimating the value of the “property * * * passing,” real estate, as well as personal estate, should be considered.
    Appeal' by Otto Kelsey, as Comptroller of the State of New York, from a decree of the Surrogate’s Court of the county of Tompkins, entered in said Surrogate’s Court on the 14th day of March, 1904, affirming an order theretofore entered in said Surrogate’s Court, fixing the transfer tax in the above-entitled proceeding and adjudging the shares passing to Hester M. Nye, Charles F. Fisher and Daniel D. Fisher to be exempt from taxation under the Transfer Tax Law.
    
      E. H. Bostwick, for the appellant.
    
      Jared T. Newman, for the respondent.
   Parker, P. J.:

The facts of this case present substantially the same situation as is found in Matter of Corbett (55 App. Div. 124).

John H. Fisher died intestate on October 25, 1903. He left as his next of kin, and to whom his estate was distributed, one sister, two brothers and four nephews and a niece, children of a deceased sister. The whole estate left by him, real and personal, after paying disbursements and necessary expenses of administration, was of the value of $10,122.46, of which one-fourth was distributed to each of the brothers" and to the sister, and one-fourth thereof to the four nephews and the niece.

The surrogate assessed a tax of five per cent upon the share distributed to each of the nephews and the niece, and determined that no tax was due upon the shares going to the brothers and sister. The determination as to the tax on the shares going to the nephews and niece is acquiesced in as correct, but from the decree adjudging thalt no tax is chargeable against the shares going, to the brothers and sister the Comptroller brings this appeal.

Had John H. Fisher died prior to March 16, 1903, the decision in the Corbett Case (supra), affirmed in 171 New York, 516, would have been conclusive. But on March 16, 1903, section 221 of the Tax Law was amended by chapter 41 of the Laws of 1903, and it is by reason of the amendment then made that the surrogate made the decision appealed from.

In my opinion, however, such amendment works no such change in the meaning of the statute as requires the interpretation that the surrogate has given it. Under the preceding act of 1892 (Chap. 399) it was settled that if the whole personal estate that passed from the decedent to his legatees and next of kin (except such as passed to persons specifically exempted ” by the act from its provisions) equaled or exceeded' $10,000, then any legacy or bequest to a father, mother, brother, sister, etc., was subject to a tax of one per cent, even though it fell far short of $10,000. Such was the construction given to section 2 of that act (now section 221 of the Tax Law) by Matter of Hoffman (143 N. Y. 327) and the Corbett Case (supra). And this conclusion was reached by holding that the word “ property,” as used in such section 2, was controlled by the definition given in section 22 of that act.

But the surrogate now claims that under the act of 1903 the language of section 221 of the Tax Law is so clear and explicit to the contrary that such definition is not applicable and that hence under the reasoning in the Hoffman case itself, there being no ambiguity in such amended section, the definition in section 242 of the Tax Law (as amd. by Laws of 1901, chap. 173) does not control.

But the trouble is that under the grammatical construction of section 221 (as. amd. by Laws of 1898, chap. 88, and Laws of 1901, chap. 458) there is no more ambiguity in that section than there is in the section as amended in 1903. There is the same necessity for resorting to the definition of “ property ” given in section 242 in the one case as in the other.. I can discover no actual change in the meaning or provisions of the section as amended, save that in estimating the value of the “ property * * * passing,” real estate as well as personal property is to be now included.

In my judgment the cases above cited are still authority requiring us to construe the word “property” in. section 221 as it is defined in section 242, and if given that meaning clearly the legacy to each brother and sister was subject to á tax of one per cent.

The decree of the' surrogate must, therefore, be reversed, with costs.

All concurred,

So much of the order and decree of the surrogate as is appealed from reversed, with costs, and the decree is modified so that it'shall provide that a tax of one per cent be levied upon the share distributed, to Charles F. Fisher, Daniel D. Fisher and Hester M. Nye, brothers and sister of the decedent.  