Estate of Smith — 5 N.Y. St. Rep. 380

Majority

p. 380

Estate of John W. Smith, deceased.

(Surrogate Court of King’s County,

Filed December 6, 1886.)

Headnote

1. Tax ok legacies and collateral inheritances — Constructions— Descendants — L. 1885, Chap. 483.

Caws of 1S85, Chap. 483, laying a tax on all property which shall pass by will, or by the intestate laws of this state to any one “ except father, mother husband, wife, children, brother and sister, and lineal descendants, born in lawful wedlock ” * * * is restricted to lineal descendants of the ancestor

2. Same — Construction — Estate.

The clause in the law as follows: “.provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to said tax or duty,” refers to the estate given to the person liable to taxation.

The tax is imposed upon all taking, “ except 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, and the societies, corporations and institutions now exempted by law from taxation, provided that an estate which may be valued at a less sum than five hundred dollars, shall not be subject to said tax or duty.”

Two questions are submitted regarding the construction of this;

I. Are the words lineal descendants restricted to the descendants of ancestor ?

II. Does the word “ estate ” in the exemption clause refer to the entire estate left by the ancestor or to the share coming to the person, society or corporation liable to taxation ?

In answer to the first question it is submitted that the words “ lineal descendants ” are restricted to those of the ancestor, the section refers to the relation of all the persons named to the ancestor. It is not at all ambiguous; but if more was wanted

p. 381

the same words are used again in the second section of the act and provision is made for the taxation of a remainder, when left “ to a collateral heir of the decedent, or to a stranger in blood,” I think is decisive as to the proper construction being as here claimed.

As to the second question, I think it evidently refers to the “ estate ” given the person liable to taxation, and for the following reasons:

1. It could not concern the Legislature what the extent of the decedent’s estate amounted to.

If he had a million, and gave to persons deemed by him worthy (but not of the exempt class) one hundred dollars each, no possible reason could exist for taxing those legatees because he had given so much more to persons who were not liable to taxation.

2. The provisions of the second section shows that the Legislature intended only to value a remainder going to those not exempt.

The solution of the second question is not quite so clear as it might be, but still I think it accords with the intention of the Legislature, and I think the amount of the tax also shows that it was not intended to be placed on small legacies.