| NY | Apr 14, 1936
The decedent left a will disposing of an estate of approximately $30,000. One clause of the will directs the payment of all just debts and funeral expenses and the erection of a gravestone or marker at an expense not to exceed $250. Several other bequests were made and the residuary estate was placed in trust for the lives *385 of the wife and son of the decedent. The will provides that if the wife predeceases the son, the trustees are to pay $1,000 out of the principal of the trust to the Macphaela Cemetery Association and at the time of the son's death an additional $3,000 is to be paid to said cemetery association. If the son predeceases the wife of the decedent, the trustees are to pay $4,000 to the cemetery association at the time of her death. The cemetery association is to hold this money in trust and apply the net income thereof to the perpetual care and embellishment of the decedent's burial plot and the graves and monuments therein. The tax appraisers, in fixing the transfer tax, included as taxable the $4,000 which is to go to the cemetery association.
Upon appeal to the Surrogate the $4,000 was held not taxable on the ground that it constituted a gift to a corporation not operating for profit and organized solely for benevolent and charitable purposes. Upon reargument the Surrogate, while conceding that cemetery corporations were not included as charitable corporations as that term is used in the Tax Law (Cons. Laws, ch. 60, § 221), affirmed upon the ground that the bequest constituted a reasonable funeral expense. The Appellate Division affirmed and granted permission to appeal to this court.
The transfer of the $4,000 bequest to the Macphaela Cemetery Association was by will. Section 220 of the Tax Law, which had not then been superseded by article 10-C, applies. Subject to certain exemptions and limitations not here applicable, as later we shall point out, this section (220) makes taxable every transfer by will of "* * * any property real or personal, or of any interest therein or income therefrom in trust or otherwise, * * *." When there is no bequest by will the transfer tax law is silent with respect to the property of a decedent which is applied to the payment of his debts and funeral expenses. In this connection *386
the courts have established the principle that only transfers which come within the express provisions of the statute are subject to the tax. Hence if a tax is to be imposed there must appear a clear expression of legislative intention. (Matter ofEnston,
The case of Matter of Maverick (
Turning now to the broad exemptions for charitable corporations provided in the Tax Law (§ 221), we find that they do not apply to cemetery corporations or associations. The second sentence of that section of the Tax Law specifically lists cemetery corporations or associations including them with other corporations *387
which are only entitled to exemptions for bequests of personal property other than money or securities. This specific reference to cemetery corporations precludes any interpretation which might bring them within the general exemption provision. (Matter ofFrancis,
The orders should be reversed and the tax reinstated, without costs.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, CROUCH and LOUGHRAN, JJ., concur.
Orders reversed, etc.