#### In the Matter of the Appraisal of the Estate of Sarah M. Harder, Deceased, Relative to Taxable Transfers. Edward L. Harder and Others, Appellants; The Comptroller of the State of New York, Respondent.

Third Department,

January 8, 1908.

Tax — transfer tax on legacy to stepson — death of parents essential to exemption.

In order to.entitle a stepson, or his descendants, to the exemption from a transfer tax provided hy section 221 of the Tax Law it must be shown not only that, from a time prior to his fifteenth birthday, the testatrix bore to such son the mutually acknowledged relation of a parent for not less than ten years, but also that *both*parents of the stepchild were dead when such relationship commenced.

If one only of the stepson’s parents were dead at the, commencement, of such relationship, the legacy to the stepson or his descendants is taxable at five per cent. "

Appeal by Edward L. Harder and others from an order of the Surrogate’s Court of the county of Columbia, entered in said Surrogate’s Court on the 23d day of July, 1907, affirming an order entered on the 3d day of May,. 1907,, assessing a transfer tax upon a legacy to the appellants.

*John I. Crcmdell,*for the appellants. . .

*Franlc 8. Beelcer,*for the respondent.

Sewell, J.:

The only question presented hy this appeal is whether a legacy of §50,000 to the appellants should have been assessed -at the rate of one dr five per centum. It is conceded that the appellants are the children of Charles H. Harder, a son of Philip M. Harder and Caroline Hash Harder ; that Caroline Hash Harder died January 28,1856; that Philip,M. Harder and the deceased were married in October, 1858, when Charles was about four years of age; that for more than ten years' thereafter Challes H. Harder lived in his father’s family with the testatrix, and that she stood in the: mutually acknowledged relation of a parent during that time. It is also con*78ceded that Philip M. Harder died August 15,1904, and the testatrix' died January 19, 1907.

The surrogate decided and decreed that the legacy to the appellants was subject to a transfer tax of five per centum under section 231 of the Tax Law (Laws .of 1896, chap. 908) as amended by chapter 368 of the Laws of 1905.

Section 221 of chapter 908 of the Laws of 1896 provided that when property or -any beneficial interest passes by will or the intestate laws of this State to any person to whom the decedent for not less than ten years prior to such transfer stood in mutually acknowledged relation of a parent, it shall not be taxable unless it is personal property of the value of $10,000 or more, in which case it shall be taxable at the rate of one per centum upon its market value. This section was amended by chapter .88 .of the Laws of 1898, and by chapter 368 of the Laws of 1905* by adding thereto “ provided, however, such relationship began at or before the'child’s fifteenth birthday and was continuous for said ten years thereafter, and provided also that the parents of such child shall be deceased when such relationship commenced.”

There is no force, in the contention of the appellants that the Legislature did not intend by this amendment to change the exemption and the amount of the tax if one of the parénts of the child was living when the relationship commenced.'- The language of the amendment is clear, definite and certain, and while there may be no satisfactory reason for limiting the exemption or the rate of the tax to a case where both parents were dead when the relationship commenced, it is certain that the Legislature has done so and it is the duty of the courts to give it effect.

The order appealed from, therefore, should be affirmed, with costs to respondent Comptroller.

All concurred.

Order affirmed, with costs.

*

 Since amd. by Laws of 1907, chap. 204. See, also, Laws- of 1901, chap. 458, and Laws of 1908, chap. 41.— [Rep.