95 N.Y.S. 65 | N.Y. App. Div. | 1905
Lead Opinion
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
“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 necessarily exempted from the scopd 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 very 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
We think that this case comes within the decision of this court in Matter of Davis, 98 App. Div. 546, 90 N. Y. Supp. 244. 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 in 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 acknowl
“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 “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 purposes 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 concur, except WILLIAMS, J., who dissents in opinion, in which McLENNAN, P. J., concurs.
Dissenting Opinion
The order modifying the original decree should be affirmed, with costs. This appeal involves the question whether the respondents were, within the provision of the transfer tax act (section 221, c. 908, p. 869, Laws 1896, as amended by chapter 458, p. 1172, Laws 1901), children to whom the decedent, for not less than 10 years prior to his death, stood in the mutually acknowledged relation of a parent, such relationship commencing at or before their fifteenth birthdays, respectively, and being continuous for the 10 years thereafter. The respondents were nieces of the decedent. Their mother died when they were three and seven years old, respectively. The decedent and his wife were without children of their own, and after the death of their mother the respondents came to live with their uncle and aunt, and remained with them until their respective marriages, more than 10 years later. Whether they occupied the relationship referred to in
“The clause, we think, was intended to have a broader scope; to include, among others, those cases, not infrequent, where a person without offspring, needing the care and affection of some one willing to assume the position of a child, takes, without formal adoption, a friend or relative into his household, standing to such person in loco parentis, or as a parent, and receives in return filial attention and service.”
The evidence here discloses treatment of each other by decedent - and his wife and the respondents, and their daily lives, in their home, which speak plainer than mere words can, of the relationship mutually acknowledged between them. Decedent spoke of them as his girls, and he treated them as such. He did not say
The surrogate was right in the final decision made by him, and the order appealed from should be affirmed.
McLENNAN, P. J., concurs.