(77 Hun, 134.)

#### In re SMITH’S ESTATE.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Transfer Tax— Exemptions—Foreign Religious Corporation.

Laws 1892, c. 399, § 2, which exempts from the transfer tax legacies to-religious corporations, does not apply to foreign religious corporations.

Appeal from surrogate’s court, Orleans county.

Proceeding for the assessment and collection of the collateral inheritance tax on bequest contained in the will of Julia.A. Smith, deceased. From a decree holding that the bequest was not subject to the tax, the county treasurer appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

E. B. Simons, for appellant.

D. W. Perkins, for respondent.

LEWIS, J.

Mrs. Julia A. Smith, deceased, by her will, which was-admitted to probate by the surrogate of Orleans county on- the 23d day of March, 1891, made bequests to three foreign missionary-societies, namely, the American Baptist Missionary Union, the Woman’s American Baptist Home Missionary Society, and the Woman’s Baptist Foreign Mission Society; to one the sum of" $1,000, and to the others the sum of $2,000 each. This proceeding-was instituted before the surrogate of Orleans county for the assessment and collection of the collateral inheritance tax on said bequest. The learned surrogate held and decided that the societies mentioned were not liable for the legacy tax on the sums so bequeathed to them, for the reason that they were exempt from the payment thereof by the provisions of section 2 of chapter 399 of the Laws of 1892. The treasurer of the county of Orleans, who was a party to the proceeding, appealed from the decree. Whether said, societies are liable for the said tax is the only question presented for our decision, and that involves the construction of our collateral inheritance statutes. Chapter 483 of the Laws of 1885 was the-*477first act passed providing for such a tax. It was amended by several subsequent statutes. A general law was passed, covering the entire subject, being chapter 399 of the Laws of 1892, which took effect on the 30th day of April of that year. The first section of the act provides for imposing a tax of 5 per cent, upon the transfer of any property, real or personal, of the value of $500 or over, when the transfer is by will or by the intestate laws of the state, of any person dying seised or possessed of the property while a resident of the state, or when the transfer is by will of property within the state, and the decedent was a nonresident of the state at the time of his death, except as otherwise prescribed in section 2 of the act. Section 2 provides for a tax of 1 per cent, upon the property passing by such transfer to the use of certain relatives of the deceased, mentioned in the section. The following provision is contained in this section:

“But any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempted from and not subject to the provisions of this act.”

The learned surrogate held that the institutions mentioned were, m consequence of this provision, exempt from the payment of the tax; and whether the construction given to the section is correct depends upon whether the words “religious corporation” include the corporations of that character, foreign as well as domestic. The language of the proviso is quite general, and says that any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempt, and not subject to the provisions of the act. We are not referred to any reported case deciding this precise question. The court of appeals, in Re Prime, 136 N. Y. 347, 32 N. E. 1091, gave construction to the act, chapter 553 of the Laws of 1890. The purpose of the latter act was to limit the amount of property, as well as the income therefrom, which might be held by any religious, educational, and other societies mentioned. There was a provision in the act that “chapter 483 of the Laws of 1885, entitled ‘An act to tax gifts, legacies, and collateral inheritances in certain cases,’ and the acts amendatory thereof, shall not apply thereto, nor to any gifts to any such corporation by grant, bequest or otherwise.” Certain foreign corporations were named in Prime’s will as legatees, and they claimed exemption from the inheritance tax. It was held by the •court of appeals that the statute had application to domestic corporations only, and did not include foreign corporations. While the question before us was not involved in the decision of the Prime Case, the court very elaborately discussed the rights of foreign corporations under the statutes of our state, and enunciated a general rule of construction, which would seem to fully cover the questions presented in the case at bar. Chief Justice Andrews, in his opinion, says:

“We are of opinion that a statute of a state granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the state, and over which it has the power of visitation and control. Such is the natural interpretation *478of such legislation, in the absence of a contrary intention appearing on the face of the act. The legislature in such cases is dealing with its own creations, whose rights and obligations it may limit, define, and control.”

He further says:

“It is the policy of society to encourage benevolence and charity. But it is not the proper function of the state to go outside of its own limits, and devote its resources to support the cause of religion, education, or missions-for the benefit of mankind at large.”

The Prime Case was decided by the general term in April, 1892.1 It was appealed to the court of appeals, and decided by that court in January, 1893 (32 N. E. 1091). The act of 1892, which Ave are-considering, became a law April 30th of that year. The members of the court of appeals were undoubtedly aware of the provisions of the act of 1892, and may have intended, in laying doAvn the doctrine-for the construction of statute above referred to, to establish a rule for the guidance of the courts in cases which might arise thereunder. The act of 1892 grants certain privileges to religious corporations,, but, as there is an absence of any plain indications in the act that it is intended to apply to foreign corporations, we are inclined to hold that, under the doctrine of the Prime Case, the three societies mentioned are liable to the payment of the legacy tax. The-decree of the surrogate, appealed from, should be reversed, and the proceedings remitted to that court, with directions to determine the amount of tax for the payment of which the legatees mentioned are liable, without costs of this appeal to either party. All concur-

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18 N. Y. Supp. 603.