#### In the Matter of the Estate of Edgar M. Van Kleeck, Deceased.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

Collateral inheritance tax—Churches.

Testator directed his executors, after the death of his wife, to pay to a certain church $10,000 “ towards the building of a new church or the renovation of the present one.” The church built a new edifice and paid therefor, through a loan, in anticipation of such payment by the executors. *Held,*that this fund was exempt from the collateral inheritance tax, as when it became property in the hands of ■ the church it was to a church edifice and exempt by law.

Appeal from order of the surrogate of Dutchess county declaring a bequest free from the collateral inheritance tax.

*Martin Heermance,*for county treasurer, app’lt; *Robert F. Taylor,*for Christ church, resp’t

Barnard, P. J.

The testator died on the 6th of January, 1887. By his will he directed a fund of $40,000 to be set apart and the income thereof to be paid quarterly to his wife during her life. The wife is still living. After her death the will directs his executor to pay “ to Christ Church of Poughkeepsie $10,000 towards the building of a new church or the renovation of the present one.” Since the testator’s death the church has built a new church edifice, and have paid for the same, using this remainder for this *384purpose by loan of short sum in anticipation of its payment over after the life estate ceases.

The question presented is, whether this $10,000 is liable to the collateral inheritance tax. The Eevised Statutes provide that every building for public worship and the lot on which it is built and the furniture belonging to it shall be “ exempt from taxation.” 2 E. S., 7th ed., 982, § 4.

The collateral tax law, chap. 713, Laws of 1887, imposes a tax of five per cent, on all gifts by will to corporations other than such gifts when made to corporations “ now exempted by law from taxation.”

The church in question has no general exemption from taxation, and if the gift was an absolute one and not for the purpose of building a new church or repairing the old one, the case would be embraced in *Catlin*v. Trustees, *&c.,*113 N. Y., 133; 22 N. Y. State Rep., 189.

The question, therefore, in this case is whether a gift for a new church, which is exempt, falls within the exemption of the collateral tax law, which exempts this corporation from taxation upon this new church. The church takes as trustee for a specific purpose, and there was no need of the testator directing his executor to build the church in order to make the subject of the gift exempt as a church edifice after the money has been put in it

A valid trust is not effected by the fact that the beneficiary is appointed trustee. When the church takes the money it gets no title, other than a trust title, until the money is put into a new building or used on the old. ■

The spirit of the collateral inheritance tax is in favor of the exemption. Property is directed to be exempt from taxation, and when this $10,000 became property in the hands of the church, it was to a church edifice and exempt “by law.”

The judgment should be affirmed, with costs.

Dykman, J., concurs.