In re the Estate of Sherwell — 34 N.Y. St. Rep. 315

Majority

p. 315

In the Matter of the estate of Benjamin W. Sherwell, deceased.^[1]

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Collateral inheritance tax—Exemption.

Estates or legacies exceeding $500 are liable to tax under chap. 713, Laws 1887, without any deduction or exemption. It was not the intention of the legislature to exempt any portion of an estate from the tax, but to limit the estates upon which the tax would be imposed.

Appeal from an order of the surrogate of Kings county, declaring, three certain legacies, amounting in the aggregate to the sum of $4,896.25, and otherwise taxable under chap. 713 of the Laws of 1887, exempt to the amount of $1,500.

There is no dispute as td the facts.

Benjamin "W. Sherwell was at the time of his death a resident of Ivybridge in the county of Devon, England. He left a last will

p. 316

and testament which was duly admitted to probate by the probate division of Her Majesty’s high court of justice, at Exeter, England, on July 3, 1888. That said last will and .testament was duly recorded in the office of the surrogate of Kings county on the 29th day of October, 1888, and ancillary letters of administration with the will annexed duly granted to the public administrator of Kings county on the 7th day of May, 1889. Of the moneys in the hands of the public administrator the sum of $4,896.25 is to be distributed among three nieces of decedent.

The specific contention of the public administrator- is that the sum of $500 of each legacy, irrespective of the amount thereof, is exempt from taxation, and that the tax can only be computed on the amount in excess of that sum.

James W. Mdgway, dist. att’y, for app’lt; Charles U. Otis, for resp’t.

We are unable to agree with the learned surrogate of Kings county in his construction of the statute involved in this case.

The language of the section which controls the question is this: “ After the passage of this act all property which shall pass by will * * * to any person, or persons, * * * other than to, or for the use of his or her father, etc., * * * shall be, and is subject to a tax of five dollars on every one hundred dollars of the clear market value of such property, * * * provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to such duty or tax.”

The legacies in question, whether taken singly or in the aggregate, cannot be valued less than $500, because they are payable in money. They are also property, and the statute is that all property which shall pass by will or by the intestate laws of this state to any person, with some specified exceptions, shall be subject to a tax, but if an estate be valued at less than $500, it shall not be subject to such tax. In other words, if an estate be valued at less than $500 it is exempt from the tax entirely, and if it be valued at more than $500, it is all liable to the tax without any deduction or exemption.

It was not the intention of the legislature to exempt any portion of an estate from the tax, but to limit the estates upon which the tax would be imposed.

The order should be reversed, with ten dollars costs and disbursements to be paid from the estate.

Barnard, P. J., and Pratt, J., concur.