In re Duryea's Estate

This appeal presents a single question, viz., is the widow of an adopted son the “widow of a son” within the meaning and intendment of those words as used in the transfer tax law? Section 221 of that law (Daws 1896, p. 869, c. 908), as amended by chapter 368, p. 829, of the Daws of 1905, provides:

“When property real or personal or any beneficial interest therein, of the value of less than ten thousand dollars, passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter * * * such transfer of property shall not be taxable under this act; if real or personal property, or any ■ beneficial interest therein, so transferred is of the value of ten thousand dollars or more, it shall be taxable under this act at the rate of one per centum upon the clear market value of such property.”

We think the case is controlled by the rule declared in Matter of Cook, 187 N. Y. 253 , 79 N. E. 991 . In that case the question presented was whether succession through the bequest of a foster parent, by the descendant of an adopted child, was to be taxed at the rate of 1 or 5 per cent., and it was held that, although not named in hzec verbas in the transfer tax act, the rate of taxation was the same as if the adopted child had “sprung from the loins of the testator” instead of being an adopted daughter. See, also, Von Beck v. Thomsen, 44 App. Div. 373 , 60 N. Y. Supp. 1094 . The appellant being the widow of an adopted son, who by the provisions of section 64 of the domestic relations law (Laws 1896, p. 227, c. 272) was a son of the testator, with all the results which that relation implies, is the “widow of a son” within the fair and legal intendment of the statute, and entitled to the benefit of its exemption. Matter of Miller, 110 N. Y. 216 , 18 N. E. 139 , cited by the learned cofinsel for the Comptroller, in which it was held that the word “children” as used in the statute did not include an adopted child, was based upon the provisions of chapter 483, p. 820, Laws of 1885, which was in effect when the order appealed from in that case was made. Subsequently, however, that statute was amended so that there was added to the legal rights of an adopted child that of inheritance, and the statute says:

“And the heirs and next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person so adopting,” etc.

The right of succession by the appellant was subject to taxation at the same rate as if her husband—in the words of the court in Matter of Cook—“had sprung from the loins of the testator.”

The order of the surrogate must be reversecQ and the decree modified by reducing the transfer tax therein fixed and assessed from $2,-654.37 to the sum of $530.87, with costs to the appellant. All concur.