In re Balleis' Estate — 29 N.Y.S. 261

Majority

p. 261

(78 Hun, 275.)

In re BALLEIS’ ESTATE.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Headnote

Transfer Tax—Religious Corporations.

Laws 1892, c. 899, which exempts from the transfer tax property devised or bequeathed to “any religious corporation,” does not apply to foreign religious corporations.

Appeal from surrogate’s court, Kings county.

Proceeding for taxation of the estate of Nicholas Bailéis under the transfer tax act. From an order assessing the tax, certain legatees appeal.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, J J.

John R. Kuhn, for appellants.

James W. Ridgway and Robert B. Bach, for respondent.

This is an appeal from an order of the surrogate of Kings county imposing a tax upon the transfer of certain property under the will of Nicholas Bailéis, deceased. By Ms last will and testament the deceased gave the residue of his property, excepting his library and certain vestments and furniture, to the college and schools of St. Vincent’s abbey, Westmoreland county, Pa., and to the college and schools of SL Mary’s abbey, in Newark, N. J., to be divided among them in equal parts. He gave his library, furniture, and vestments to the Benedictines of Newark. The surrogate decided that the act in relation to transfers of property (chapter 399, Laws 1892) did not extend the privilege of exemption therein allowed to certain religious corporations to corporations other than those created by the laws of this state, and that the legacies to the appellants were subject to the tax. The Order of St. Benedict and the Benedictine Society have appealed, and

p. 262

we assume that they are the legatees, although the names are not precisely the same as those given in the surrogate’s findings. The will itself is not in the printed record. The question is whether the legacies are exempted from the operation of the act relating to taxable transfers of property, and the language of the statute under which such exemption is claimed is this:

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

The legatees are foreign religious corporations, but the order is based upon the theory that foreign corporations are subj'ect to the provisions of the act in question. The exemption clause is conceived in clear and precise terms, and requires no interpretation, and, if it was allowed the full force of its signification, the legacies in question would fall within its operation, and be exempted from the tax. We feel bound, however, by the decision of the court of appeals in Re Prime, 136 N. Y. 360 , 32 N. E. 1091 , to hold that the legacies are subject to the tax. It was said in the opinion in that case, which was unanimous, as follows:

“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.”

The order appealed from should be affirmed, with costs and disbursements. ’ All concur.