#### *In re*Roger’s Estate.

*(Surrogate’s Court, Orange County.*

February 28, 1890.)

Descent and Distribution—Legacy Tax—Legacy to Pay Debt.

Testator’s will gave to H. “any and all benefit, so far as bis interest may appear and be proved,” in the moneys payable at testator’s death under his membership in an insurance association; the balance to testator’s wife. The insurance was effected to secure testator’s debt to H. Held that, asH. took nothing unless he proved a debt against the estate, the money he would receive was not, within Laws N. Y. 1887, c. 713, § 1, taxing legacies.

Proceedings to collect the collateral inheritance and legacy tax on the estate of John L. Rogers, deceased.

*D. A. Scott,*for Mary E. Rogers, widow. *Theodore Miller,*for John B. Hillyer.

Coleman, S.

By an instrument which has been admitted to probate as the will of John L. Rogers, who died a resident of this county, October 12, 1889, it is provided as follows: “I hereby give and bequeath to J. B. Hillyer, of 74 Broadway, New York city, any and all benefit, so far as his interest may appear and be proved. The balance and remainder to my wife, * * * any and all benefit and moneys which may accrue or become due and payable at my decease under and by virtue of my membership in the Northwestern Masonic Aid Association of Chicago.” It appears that the testator, in order to secure an indebtedness to J. B. Hillyer, effected an insurance upon his life with the Masonic Aid Association, and there is now due Hillyer upon this indebtedness $5,163.39, as ascertained and reported by the appraiser appointed under chapter 713, Laws 1887. It is claimed that this sum is not liable to the tax imposed by the act mentioned; that is not a gift, legacy, or inheritance within the meaning of that act. The act is entitled “ An act to tax gifts, legacies, and collateral inheritances,” and the property made subject to tax by section 1 is all property which shall pass by will, or by the intestate laws •of this state, from any person who may die seised or possessed of the same. It does not appear to whom the insurance would have been payable if there had been no will, and I do not suppose that is material in this proceeding; for, if the will had not contained the provision in favor of Hillyer, the wife would have taken it all under the will, and the fund, therefore, would not be taxable. Whether Hillyer takes anything under the will depends upon his being able to prove a debt. He takes nothing if there was no debt. So that, while he may be entitled *to*receive something by virtue of the will, he does not get it as a gift, but as payment of a debt. It may be that, unless he had been provided for in this way by the will, Hillyer would not have been able to •collect his debt, by reason of the terms of the contract of insurance; still, as I have said, whatever he may get, even by virtue of the will, is simply the payment of his debt. The words “give and bequeath” are employed by the testator, but I do not think that thereby any added force or character was given Hillyer’s claim, and the use of them accomplished nothing more than the usual general direction in wills to pay debts and funeral expenses. I am therefore of opinion that the money received by Hillyer is not a gift, legacy, or inheritance, or property which has passed by will from a person who has died seised or possessed of the same. A bequest in satisfaction of a debt has been held to be within the definition of a legacy, *(Orton*v. *Orton,*3 Abb. Dec. 411, 414,) but I doubt if the word “legacy” is used in so broad a sense in this act. A legacy naturally implies bounty or benevolence, *(Lockyer*v. *Simpson,*Mos. 300; *Clark*v. *Sewell,*3 Atk. 98;) and it has been held that so far as *a*legacy is applied to pay a debt it is no legacy, and to be a payment and nor a gift, *(Rawlins*v. *Powel,*1 P. Wms. 299; *Cuthbert*v. *Peacock,*1 Salk. 155.) Having reached this conclusion, it is not necessary to consider whether, *23under the circumstances, the money being received as a benefit from an aid association after death of a member, it can properly be considered property that has passed “from a person who may died seised or possessed of the same,” which I am inclined very much to doubt.