Hiscock, J.:
The only question presented upon this appeal is whether the beneficiaries above named come within the exemptions of the statutory provision above quoted, and upon this question the majority of this court are of the opinion, opposed to that held by the learned surrogate, that they do not.
The evidence, briefly summarized established, that the legatees were the nieces of the decedent; that their mother died when they [194]*194were young and their father is still living; that at an early age and within that fixed by the statute they came from their father’s home in one part of the State to the home of the decedent in another part, where they continued to live' with' him and his wife for a longer period than that required by the. statute; that they were both married from his house upon his consent which was asked to said marriages; that during the period of their residence with him and before their marriage he provided, for their support and education. It is assumed, though there is no competent evidence to that effect, that the father did not contribute anything towards such support. The uncle and aunt upon the one side and the nieces upon the other entertained affectionate and considerate relations towards each other and the latter contributed to the aid and happiness of the former.
But, upon the other hand, the relationship existing between the parties was never characterized or acknowledged by any of them as that of parent and children. The children invariably referred to the older people as “ uncle ” and “ auntie,” and the latter referred to the former as nieces. Never upon any occasion were the terms “ father ” and “ mother ” upon the one side or “ daughter ” upon the other, used. While some of the witnesses indulged in conclusions and inferences about what was supposed to be the relationship between the parties, it was perfectly understood by all of those who spoke directly upon the point that the beneficiaries were nieces, and that there was ho actual or created relationship of children:
The will itself by which the bequests are made which are here . involved expressly defines the beneficiaries as “ nieces ” and nowhere otherwise.
We think that this evidence fails to establish, such a relationship as comes within the exemption of the statute. It is firmly settled that no person or property' is impliedly exempt from taxation, and that where exemption is claimed the statute is to be strictly construed against the claimant. (People ecu rel. Newburgh Savings Bank v. Peck, 157 N. Y. 51; Matter of Moore, 90 Hun, 162.)
In Yazoo & Mississippi Y. Ry. Co. v. Adams (180 U. S. 1) it is said : “ Exemptions from taxation are not favored by law, and will not be sustained unless such clearly appears to have been the intent of the Legislature. Public policy in all the States has almost neces[195]*195sarily exempted from the scope of the taxing power large amounts of property used for religious, educational and municipal purposes; but this list ought not to be extended except for very substantial reasons; and while, as we have held in many cases, Legislatures may, in the interest of the public, contract for the exemption of other property, such contract should receive a strict interpretation and every reasonable doubt be resolved in favor of the taxing power. Indeed, it is not too much to say that courts are astute to seize upon evidence tending to show either that such exemptions were not originally intended, or that they have become inoperative by changes in the original constitution of the companies.”
The fact that decedent and his wife invited or brought the beneficiaries to their home and provided for their support and education, and that upon one side there was authority and advice and upon the other side obedience and helpfulness, does not necessarily establish -the relationship of parent and children contemplated by the statute as the basis for the exemption claimed here. It was perfectly proper for the older people, if they saw fit, to bring these young people to their home and establish this statutory relationship of parent and children. But, upon the other hand; it was equally proper and natural, if they desired, for them to do these things towards the children as their nieces, and .without any thought whatever of ever changing the relationship of uncle and aunt and nieces to anything else. We do not think that we should hold that the mere fact that an uncle brings a nephew or niece to his house, and during infancy supports and advises and guides him or her, necessarily establishes the relationship of father and child under this statutory provision or for any other purpose. . We may assume as a matter of ordinary experience that not infrequently an older person invites to his home and rears and cares for some younger person with no idea whatever of changing the actual relationship, if any, which exists between them or of establishing some new one of parent, and child. Such indeterminate and uncertain acts are to be subjected to the further test of the statute which requires that before the relationship of parent and child can be regarded as having existed, it must have been mutually acknowledged by the parties. This was not done in this case. For some reason the parties, while enjoying and sustaining some of the relations which
[196]*196would be incidental to the condition of parent and child, did not choose to assume or acknowledge that that relationship had been created or existed. There was no reason why all of the actual benefits to be received by one side from the other might not just as well be enjoyed under the actual relationship of uncle and niece as under a newly created and statutory one of father and child. Hence, all during the decedent’s life, instead of mutually acknowledging that he was the father and the' beneficiaries the daughters, the parties continuously adhered to the view that the original relationship of uncle and nieces still existed and was continued. And the language of the will seems to us to be especially significant. The testator must be assumed t©' have, known what w^as the law upon this subject, and yet knowing it, in so solemn an instrument as his last will, he preferred to designate and treat the beneficiaries distinctly and unequivocally as his nieces.
We think that this case comes within the decision of this court in Matter of Davis (98 App. Div. 546). 'Practically all of the controlling facts' were the same in that case as this. The benefactor furnished a home and advice and consent to marriage and in part support and maintenance. All of the substantial features incident to the relationship of father and child were as much present in that case as in this, save that here it is assumed without, as we feel, adequate proof that the uncle contributed the entire support and maintenance of his nieces, instead of in part as m the Davis case. But in the case cited, as in this one, the parties neglected or refused to comply with the requirements of the statute that there should be an open' and mutually acknowledged relationship of father and child, and it was held that an exemption had not been established within the statute.
In the case of Matter of Beach (154 N. Y.
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Hiscock, J.:
The only question presented upon this appeal is whether the beneficiaries above named come within the exemptions of the statutory provision above quoted, and upon this question the majority of this court are of the opinion, opposed to that held by the learned surrogate, that they do not.
The evidence, briefly summarized established, that the legatees were the nieces of the decedent; that their mother died when they [194]*194were young and their father is still living; that at an early age and within that fixed by the statute they came from their father’s home in one part of the State to the home of the decedent in another part, where they continued to live' with' him and his wife for a longer period than that required by the. statute; that they were both married from his house upon his consent which was asked to said marriages; that during the period of their residence with him and before their marriage he provided, for their support and education. It is assumed, though there is no competent evidence to that effect, that the father did not contribute anything towards such support. The uncle and aunt upon the one side and the nieces upon the other entertained affectionate and considerate relations towards each other and the latter contributed to the aid and happiness of the former.
But, upon the other hand, the relationship existing between the parties was never characterized or acknowledged by any of them as that of parent and children. The children invariably referred to the older people as “ uncle ” and “ auntie,” and the latter referred to the former as nieces. Never upon any occasion were the terms “ father ” and “ mother ” upon the one side or “ daughter ” upon the other, used. While some of the witnesses indulged in conclusions and inferences about what was supposed to be the relationship between the parties, it was perfectly understood by all of those who spoke directly upon the point that the beneficiaries were nieces, and that there was ho actual or created relationship of children:
The will itself by which the bequests are made which are here . involved expressly defines the beneficiaries as “ nieces ” and nowhere otherwise.
We think that this evidence fails to establish, such a relationship as comes within the exemption of the statute. It is firmly settled that no person or property' is impliedly exempt from taxation, and that where exemption is claimed the statute is to be strictly construed against the claimant. (People ecu rel. Newburgh Savings Bank v. Peck, 157 N. Y. 51; Matter of Moore, 90 Hun, 162.)
In Yazoo & Mississippi Y. Ry. Co. v. Adams (180 U. S. 1) it is said : “ Exemptions from taxation are not favored by law, and will not be sustained unless such clearly appears to have been the intent of the Legislature. Public policy in all the States has almost neces[195]*195sarily exempted from the scope of the taxing power large amounts of property used for religious, educational and municipal purposes; but this list ought not to be extended except for very substantial reasons; and while, as we have held in many cases, Legislatures may, in the interest of the public, contract for the exemption of other property, such contract should receive a strict interpretation and every reasonable doubt be resolved in favor of the taxing power. Indeed, it is not too much to say that courts are astute to seize upon evidence tending to show either that such exemptions were not originally intended, or that they have become inoperative by changes in the original constitution of the companies.”
The fact that decedent and his wife invited or brought the beneficiaries to their home and provided for their support and education, and that upon one side there was authority and advice and upon the other side obedience and helpfulness, does not necessarily establish -the relationship of parent and children contemplated by the statute as the basis for the exemption claimed here. It was perfectly proper for the older people, if they saw fit, to bring these young people to their home and establish this statutory relationship of parent and children. But, upon the other hand; it was equally proper and natural, if they desired, for them to do these things towards the children as their nieces, and .without any thought whatever of ever changing the relationship of uncle and aunt and nieces to anything else. We do not think that we should hold that the mere fact that an uncle brings a nephew or niece to his house, and during infancy supports and advises and guides him or her, necessarily establishes the relationship of father and child under this statutory provision or for any other purpose. . We may assume as a matter of ordinary experience that not infrequently an older person invites to his home and rears and cares for some younger person with no idea whatever of changing the actual relationship, if any, which exists between them or of establishing some new one of parent, and child. Such indeterminate and uncertain acts are to be subjected to the further test of the statute which requires that before the relationship of parent and child can be regarded as having existed, it must have been mutually acknowledged by the parties. This was not done in this case. For some reason the parties, while enjoying and sustaining some of the relations which
[196]*196would be incidental to the condition of parent and child, did not choose to assume or acknowledge that that relationship had been created or existed. There was no reason why all of the actual benefits to be received by one side from the other might not just as well be enjoyed under the actual relationship of uncle and niece as under a newly created and statutory one of father and child. Hence, all during the decedent’s life, instead of mutually acknowledging that he was the father and the' beneficiaries the daughters, the parties continuously adhered to the view that the original relationship of uncle and nieces still existed and was continued. And the language of the will seems to us to be especially significant. The testator must be assumed t©' have, known what w^as the law upon this subject, and yet knowing it, in so solemn an instrument as his last will, he preferred to designate and treat the beneficiaries distinctly and unequivocally as his nieces.
We think that this case comes within the decision of this court in Matter of Davis (98 App. Div. 546). 'Practically all of the controlling facts' were the same in that case as this. The benefactor furnished a home and advice and consent to marriage and in part support and maintenance. All of the substantial features incident to the relationship of father and child were as much present in that case as in this, save that here it is assumed without, as we feel, adequate proof that the uncle contributed the entire support and maintenance of his nieces, instead of in part as m the Davis case. But in the case cited, as in this one, the parties neglected or refused to comply with the requirements of the statute that there should be an open' and mutually acknowledged relationship of father and child, and it was held that an exemption had not been established within the statute.
In the case of Matter of Beach (154 N. Y. 242), where an exemption was established, the court takes occasion to say: “ The testator introduced the appellant as his daughter, and, in short, the evidence is, that from 1881 until the death of the testator in 1893, the assumed relation of parent and child continued between the testator and Mrs. James without interruption, and was publicly, acknowledged.”
It is said that it should not be urged against the respondents that they did not. call the decedent “ father ” and he call them [197]*197“daughters,” because that relationship did not actually exist and the parties should not be required to have falsified and misstated their relationship. This argument, however, does not seem to us to have force. Under the statute in question and for its purposes a person may create the relationship of father and child with one who in blood and reality bears no such relationship to him. If a person sees fit so to do he may build, up, for the ¡imposes of the statute, a relationship of parent and child which supersedes and takes the place of the natural one existing between the child -and some other person. When he has done this, the statute not only permits but requires that this new relationship shall be mutually acknowledged and recognized, and we see no way in which- this may be so aptly and properly done as by employing the terms which naturally and universally indicate the relationship of parent. Those terms of “father” and “child” are properly applicable to the new relationship which has been created, and we do not think it was any excuse for withholding the mutual acknowledgment required by the statute to say that the employment of these terms would be an indulgence in falsehood and misrepresentation.
The order appealed from should be reversed in so far as it modifies the order of July 21, 1903, by striking out the tax levied and assessed upon the legacies bequeathed by the decedent, John M. Deutsch, to Mildred Conderman and Frances Richardson, with costs to the appellant.
All concurred, except Williams, J., who dissented in an opinion, in which McLennan, P. J., concurred.