#### Matter of the Estate of Emma E. Wolfe, Deceased.

(Surrogate’s Court, Westchester County,

April, 1898.)

Transfer tax of 1892 — Devise to a foreign (corporation, authorized to take -and hold property'in the state of Mew York.

A foreign corporation; although enabled by chapter 557 of the Laws of 1893- to take by devise and. hold property in the state of New York, within existing statutory limitations, is, in the absence of any statutory exemption, taxable under chapter 399 of the Laws of 1892, upon the succession to a legacy under the will of a decedent who died in January, 1894.

Appeal from a decree assessing transfer tax. :

Joseph W. Middlebrook, for state comptroller, appellant.

E. S. Clinch, for American Baptist Publication Society, respondent.

*440Silkman, S.

This is an appeal from, a decree assessing the transfer tax upon the succession to the estate of Emma E. Wolfe. The decedent died January 8, 1894, and the succession is taxable under chapter 399 of the Laws of 1892. The ground of the appeal is that the decree fails to assess a tax against the legacy to which the respondent succeeds. I think the appeal must prevail, I am unable to distinguish this case from that of Matter of Prime, 136 N. Y. 349, in which'the court' said in referring to a foreign corporation: “ It is obvious that the corporations now claiming . exemption from the legacy tax must be able to point to some statute of this state antedating the assessment of the legacy ditty which exempts foreign religious and charitable corporations from taxation generally, or specially from taxation under the Inheritance Tax Law.”

The Law of 1892 provides for a tax upon the transfer *“*to all persons or corporations not exempt by law from taxation on real or personal property in the following eases.” ...

The Laws of 1890, chapter 553, exempts certain corporations therein referred to from taxation under the Inheritance Tax Law of 1885, and the acts amendatory thereof.

It has been held that the exemption of the corporations in said - act referred to are domestic corporations only. The respondent claims, that by reason of an enabling act chapter 551 of. Laws , of 1893 authorizing them as follows: “ shall have power to ¡receive, take, hold and enjoy any property, real or personal, in'the state of Rew York, by. virtue of any devise, bequest, gift, grant, or purchase, subject, in respect to the amount of property it may-take and hold, to the restrictions and limitations of existing laws, and in respect of devises' and bequests from residents of the state, of Rew York, to the provisions of chapter 360 of the Laws of 1860,” it is not subject to taxation. The right to take, hold and enjoy property does not relieve the respondent from taxation any more than an act of the legislature authorizing an alien to take by grant or devise', would exempt such alien from taxation under the Transfer Tax Law. That the right to tax and hold is made subject to limitations of existing laws and subject to limitations of chapter 360: of the Laws of 1860, cannot be construed to relieve the respondent from the operation of the revenue laws of the state.

The decree must be modified adjudging a tax upon the succession of the respondent. Twenty-five dollars costs of appeal awarded to appellant against the respondent. '

Decree modified, with.$25 costs to appellant.