
    
      In re Herr’s Will.
    
    
      (Supreme Court, General Term, Second Department.
    
    December, 1889.)
    Legacy Tax—Exemption—Industrial Institutions.
    Under Rev. St. N. Y. (7th Ed.) p. 982, § 4, subd. 4, providing that every “house of industry, ” and “the real and personal property used for * * * purposes belonging to or connected with the same, ” shall be exempt from taxation, a legacy to such an institution is not subject to the succession tax provided for in Laws N. Y. 1887, c. 713, § 1, since that act excepts “societies, corporations, and institutions now exempted by law from taxation. ” Cullen, J., dissenting.
    Appeal from surrogate’s court, Kings county.
    In the matter of the inheritance tax of certain legacies under the will of' Erederich Herr, deceased. The surrogate held that all the legacies were taxable, (see 5 M. Y. Supp. 48,) and the Wartburg Orphan Farm School of the Evangelical Lutheran Church appeals. Laws M. Y. 1887, c. 713, § 1, provides: “All property which shall pass by will, * * * other than to societies, corporations, and institutions now exempted by law from taxation, * * * shall be and is subject to a tax of five dollars on every hundred dollars,” etc.
    Argued before Barnard, P. J., and Dykman and Cullen, JJ.
    
      Jacob F. Miller, for appellant. D. E. Meeker, for executors.
    
      
       Reversing 5 N. Y. Supp. 48.
    
   Barnard, P. J.

The testator, by his will, gave a legacy of $1,000 to the orphan asylum at Mt. Vernon. The legislature, by special act, incorporated the Deaconess Institution of the Evangelical Lutheran Church, by chapter 161, Laws 1869. The object of the incorporation was to maintain an orphan farm school at Mt. Vernon. The corporation was subjected to the restriction, and was clothed with the privileges, provided in the general law for the incorporation of religious and benevolent associations. No exemption from •taxation was granted by the charter. The charter was amended by chapter 440, Laws 1875, and was again amended by chapter 106, Laws 1884, and the name was changed to the “ Wartburg Orphan Farm School of the Evangelical Lutheran Church. ” Neither of these amending acts gave an exemption from taxation. The Wartburg Orphan Farm School was intended to be the corporation to receive the legacy, and the question presented is whether the legacy is subject to the collateral inheritance tax. There being no general exemption by the charter from taxation, the cóllateral tax is chargeable, unless there be a special exemption from the operation of the collateral tax law. Catlin v. Trinity College, 113 N. Y. 133, 20 N. E. Rep. 864. This special exemption is clearly made in title 1, c. 13, § 4, subd. 4, Rev. St. (7th Ed. p. 982.) This section reads as follows: “The following property shall be exempt from taxation. * * * Every poor-house, alms-house, house of industry, and ■every house belonging to a company incorporated for the reformation of offenders, or to improve the moral condition of seamen, and the real and personal property, used for such purposes, belonging to or connected with the same. ” If this appellant, being clearly a house of industry, had personal property invested for the support and maintenance of this orphan home, it would be free from taxation under this subdivision. There is no reason why the general term of “personal property, used for the purposes of the incorporation, ” should be restricted to the furniture of the home, or to specific articles contained therein. The fact that the legislature, in exempting schools and colleges, only exempted “the furniture belonging to each of them, ” shows that a larger exemption was designed by this section 4. For a school, the building and its furniture is sufficient, but for a home for orphans, who were to be clothed and maintained, something more was needed; and the legislature met this need by the personal property used for the purposes of its support. In the next subdivision, (5,) a complete exemption of libraries is made, by the use of the same language as that contained in section 4. Section 5 exempts “the real and personal property of every public library.” If the money is free from taxation after it is obtained, then, under this collateral tax law, it is free from the collateral tax of 5 per cent.; for the orphan home was “ exempted by law from taxation, ” under chapter 713, Laws 1887. This seems to be the true construction of section 4, subd. 4, of the title and chapter of the Bevised Statutes cited above. The decree should therefore be reversed, with costs, each party, out of the estate.

Dykman, J., concurs. Cullen, J., dissents.  