In re the Estate of Miller — 10 N.Y. St. Rep. 341

Majority

p. 341

In the Matter of the Estate of Mary E. Miller, Deceased.^[1]

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

1. Collateral inheritance tax—Exemption—Laws 1885, chap. 483, §1.

Under Laws 1885, chap. 488, § 1, there is no warrant for classing the children of brothers and sisters among the lawful issue of the deceased vho are exempt from the payment or the collateral inheritance tax.

2. Same—Lineal descendants—Who are.

The term “lineal descendants” must be limited under said act to children of deceased, and to their children and children’s children, and not be held to include the children of brothers and sisters of deceased.

Appeal from an order made by the surrogate of Orange county, imposing a tax on the legacy to a nephew of the testatrix.

E. A. Brewster, Jr., for app’lt; Bussel Headley, for resp’t.

Construing the act of the legislature, 488, 1885, as a whole, the legislative intent is plain.

The title specifies its purpose to be to tax gifts, legacies and collateral inheritances in certain cases.

By the first section all property which passes by will or under the laws governing the descent and distribution of real and personal property in cases of intestacy to any person or persons Or corporation “other than to or for the use of father, mother, husband, wife, children, brother and sister and lineal descendants, born in lawful wedlock, and the wife or widow of a son, and the husband of a daughter,

p. 342

and the societies, corporations and institutions now exempted by law from taxation,” are made subject to tax. The claim that lineal descendants refers to lineal descendants of nephews and nieces of a testatrix rests solely upon the punctuation, and, if the construction be limited strictly to it, a child’s child will be excluded and the nephew’s child included among those who take property free from the tax. Neither the grammatical construction of a sentence nor the punctuation controls the reading when from the whole act the meaning is plain. The term lineal descendants only includes the direct descendants of the testator or intestate. The act would fail if the lineal descendants of father, mother, wife and of brother and sister were among the excepted instances who had no descent from the testator’s or intestate’s descendants in the direct line. By the second section the act provides for remainders which were to pass to the class or classes not excepted after a life estate tó those who could take free from tax.

The second section is more carefully drawn. The persons who can take the life estate without tax are ‘ ‘father, mother, husband, wife, children, brother and sister, the widow of a son, or a lineal descendant.”

There is no doubt but that the classes of those who could take the life estate are the same as those who took without a tax, if an absolute property was given them by the first section.

By the ninth section of the act, the classes are again stated who are not subject to tax, as follows : Father, mother, husband, wife, lawful issue, wife or widow of a son or husband, or husband of a daughter.”

There is no warrant in this section to class the children of brothers and sisters among the lawful issue of the deceased. The term lineal descendants must therefore be limited to children of the deceased, and to their children, and children’s children, and not be held to include the children of brothers and sisters of deceased.

The order should be affirmed, with costs and disbursements.

Dykemax and Pratt, JJ., concur.