In re the Assessment of the Transfer Tax upon the Estate of Duryea

Appellate Division of the Supreme Court of New York

In re the Assessment of the Transfer Tax upon the Estate of Duryea

128 A.D. 205, 112 N.Y.S. 611, 1908 N.Y. App. Div. LEXIS 427

Appellate Division of the Supreme Court of the State of New York·Decided October 16, 1908·Published·Cited by 4 cases

Opinion

Rich, J.:

This appeal presents a single question, viz., is the widow of an adopted son the “ widow of a son ” within the meaning and intendment of those words as used in the Transfer Tax Law % Section, 221 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 368 of the Laws of 1905,

* provides: “ When property real or personal or any beneficial interest therein, of the value of less than ten thousand dollars, ¡lasses by any such transfer to or for the- use of any father, mother, husband, wife, child, brother, ■ sister, wife or widow of a son, or the husband of a daughter * * * such transfer of property shall not be taxable under this act; if real or personal property, or any beneficial interest therein, so transferred is of the value of ten thousand dollars or more, it shall be taxable under this act at the rate of one per centum upon the clear market value of such property.” The appellant is the widow of a deceased adopted son of the testator, under whose will she takes an estate of the value of $53,087.50, upon which a transfer tax of five per centum, amounting to $2,651.37, was assessed by an order of the surrogate, from which order an appeal was” taken to the surrogate under the provisions of the statute,† who upon the hearing dismissed such appeal, and from the order, accordingly entered this appeal is taken.

We think the case is controlled by the rule declared in Matter of Cook (187 N. Y. 253). In that case the question presented was whether succession through the bequest of a foster parent, by the descendant of an adopted child, was to be taxed at the rate of one [207]*207or five per cent, and it was held that, although not named in Time verba in the Transfer Tax Act, the rate of taxation was the same as if the adopted child had “ sprung from the loins of the testator ” instead of being an adopted daughter. (See, also, Von Beck v. Thomsen, 44 App. Div. 373.) The appellant being the widow of an adopted son, who by the provisions of section 64 of the Domestic Delations Law (Laws of 1896, chap. 372, as amd. by Laws of 1897, chap. 408) was a son of the testator, with all the results which that relation implies, is the “ widow of a son ” within the fair and legal intendment of the statute, and entitled to the benefit of its exemption. Matter of Miller (110 N. Y. 216), cited by the learned counsel for the Comptroller, in which it was held that the word “ children,” as used in the statute, did not include an adopted child, was based upon the provisions of chapter 483 of the Laws of 1885, which was in effect when the order appealed from in that case was made. Subsequently, however, by chapter 713 of the Laws of 1887,* that statute was amended so as to. include adopted children, and the Adoption Act (Laws of 1873, chap. 830, § 10) was amended by chapter 703 of the Laws of 1887† so that there was added to the legal rights of an adopted child that of inheritance, and the latter statute says: “And the heirs and next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person so adopting,” etc.

The right of succession by the appellant was subject to taxation at the same rate as if her husband — in the words of the court in Matter of Cook — “ had sprung from the loins of the testator.” .

The order of the surrogate must be reversed, and the decree modified by reducing the transfer tax therein fixed and assessed from $2,654.37 to the sum of $530.87, with costs to the appellant.

Jerks, Hooker, Gaynor and Miller, JJ., concurred.

Order of the Surrogate’s Court of Dockland county reversed, and the decree modified by reducing the transfer tax therein fixed and assessed from $2,654.37 to the sum of $530.87, with costs to the appellant.

See Laws of 1907, chap. 204, and Laws of 1908, chap. 810.— [Rep.

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Rich, J.:

This appeal presents a single question, viz., is the widow of an adopted son the “ widow of a son ” within the meaning and intendment of those words as used in the Transfer Tax Law % Section, 221 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 368 of the Laws of 1905,

* provides: “ When property real or personal or any beneficial interest therein, of the value of less than ten thousand dollars, ¡lasses by any such transfer to or for the- use of any father, mother, husband, wife, child, brother, ■ sister, wife or widow of a son, or the husband of a daughter * * * such transfer of property shall not be taxable under this act; if real or personal property, or any beneficial interest therein, so transferred is of the value of ten thousand dollars or more, it shall be taxable under this act at the rate of one per centum upon the clear market value of such property.” The appellant is the widow of a deceased adopted son of the testator, under whose will she takes an estate of the value of $53,087.50, upon which a transfer tax of five per centum, amounting to $2,651.37, was assessed by an order of the surrogate, from which order an appeal was” taken to the surrogate under the provisions of the statute,† who upon the hearing dismissed such appeal, and from the order, accordingly entered this appeal is taken.

We think the case is controlled by the rule declared in Matter of Cook (187 N. Y. 253). In that case the question presented was whether succession through the bequest of a foster parent, by the descendant of an adopted child, was to be taxed at the rate of one [207]*207or five per cent, and it was held that, although not named in Time verba in the Transfer Tax Act, the rate of taxation was the same as if the adopted child had “ sprung from the loins of the testator ” instead of being an adopted daughter. (See, also, Von Beck v. Thomsen, 44 App. Div. 373.) The appellant being the widow of an adopted son, who by the provisions of section 64 of the Domestic Delations Law (Laws of 1896, chap. 372, as amd. by Laws of 1897, chap. 408) was a son of the testator, with all the results which that relation implies, is the “ widow of a son ” within the fair and legal intendment of the statute, and entitled to the benefit of its exemption. Matter of Miller (110 N. Y. 216), cited by the learned counsel for the Comptroller, in which it was held that the word “ children,” as used in the statute, did not include an adopted child, was based upon the provisions of chapter 483 of the Laws of 1885, which was in effect when the order appealed from in that case was made. Subsequently, however, by chapter 713 of the Laws of 1887,* that statute was amended so as to. include adopted children, and the Adoption Act (Laws of 1873, chap. 830, § 10) was amended by chapter 703 of the Laws of 1887† so that there was added to the legal rights of an adopted child that of inheritance, and the latter statute says: “And the heirs and next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person so adopting,” etc.

The right of succession by the appellant was subject to taxation at the same rate as if her husband — in the words of the court in Matter of Cook — “ had sprung from the loins of the testator.” .

The order of the surrogate must be reversed, and the decree modified by reducing the transfer tax therein fixed and assessed from $2,654.37 to the sum of $530.87, with costs to the appellant.

Jerks, Hooker, Gaynor and Miller, JJ., concurred.

Order of the Surrogate’s Court of Dockland county reversed, and the decree modified by reducing the transfer tax therein fixed and assessed from $2,654.37 to the sum of $530.87, with costs to the appellant.

See Laws of 1907, chap. 204, and Laws of 1908, chap. 810.— [Rep.

In re the Assessment of the Transfer Tax upon the Estate of Duryea, 128 A.D. 205, 112 N.Y.S. 611, 1908 N.Y. App. Div. LEXIS 427 (N.Y. Ct. App. 1908).

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