The sole question presented by this appeal is whether the appellant, Jennie F. Lyon, a legatee under the will of John W. Davis, sustained to that testator the relation of a "child to whom any such decedent * * * for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent, provided, however, such relation began at or before the child's fifteenth birthday and was continuous for said ten years thereafter." If she did sustain such relation, her legacy was taxable only at the rate of one per cent on the excess above ten thousand dollars; if not, the legacy was subject to a tax of five per cent. The surrogate decided in the appellant's favor. The Appellate Division has reversed that decision.
As the order of the Appellate Division is silent as to the grounds on which it was made it must, under section 1338 of the Code of Civil Procedure, be presumed that the decree of the surrogate was reversed on questions of law only, and if there was any evidence to sustain the finding of the surrogate in favor of the appellant the order of the Appellate Division was erroneous. (Matter of Keefe, 164 N.Y. 352.) We think the evidence was ample to justify the finding of the surrogate. The facts, tersely stated, are as follows: The appellant was a niece of the testator's wife and was born on January 31st, 1866. Her mother died November 12th, 1872, whereupon her aunt, Mrs. Davis, took the appellant from her father's home to her own, where the appellant continued to live as a member of the testator's family till his death on January 11th, 1903, a period of over thirty years. During her infancy the appellant was supported and maintained at the expense of the testator and was subject exclusively to his control and that of his wife, the father in no respect contributing to the appellant's support nor exercising any direction over her. On her father's death in 1885 the appellant became entitled under the provisions of her grandfather's will to the sum of one thousand dollars and fifty shares of Wells, Fargo Company stock. The testator Davis received this legacy as guardian of the appellant, and upon her arriving
at age turned the legacy over to her without, however, accounting for the income received by him. After the receipt of the legacy the testator sent the appellant to boarding school in Albany for two years. The appellant was married from the testator's house and after her marriage continued to reside with him. Her aunt, the testator's wife, died nine years before the testator, and from that time the appellant took charge of the household matters. The appellant addressed the testator and his wife as uncle and aunt. They called her "niece," and she is so designated in the testator's will.
Upon the enactment of the statute relative to taxable transfers in 1892 (Chap. 399) there arose considerable conflict in the decisions of the lower courts as to what was necessary under the provisions of the statute to constitute "the mutually acknowledged relation of parent." In some courts it was held that this provision comprehended only the case of illegitimate children. The proper construction of the statute was settled by this court in Matter of Beach (154 N.Y. 242) where Chief Judge ANDREWS, writing the unanimous decision of the court, said: "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 affection and service." In that case the legatee who had been denied the reduced rate of taxation by the lower court was a married lady of middle age living with her husband. They had resided for the statutory period with the testator in his house, and the legatee had managed the household affairs of the testator. The evidence to support the legatee's claim of exemption was found in very brief affidavits, in which it was averred that the testator had stated that the legatee was his adopted daughter, and also his promise that he would treat her as a daughter. It does not appear in what terms the legatee and testator addressed one another. On these facts this
court, reversing the courts below, held that there existed between the parties the "mutually acknowledged relation of parent." After the decision in the Beach case the legislature amended this section of the statute by inserting the qualification now found, "provided, however, such relationship began at or before the child's fifteenth birthday and was continuous for said ten years thereafter." (Chap. 88, Laws 1898.) This amendment was intended to exclude persons from the benefit of the section unless the relationship was formed in the tender years of the legatee, but except as thus modified the decision in the Beach case remains in full force. We think it would be difficult to find a stronger case of a person taking "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 affection and service" than is presented by the case at bar. It is objected that the appellant did not address her uncle and aunt as father and mother, nor they call her daughter. This is of but slight importance. To give effect to it would be to sacrifice conduct and acts to appellations which are often the result of accident. Had the appellant been an entire stranger both in blood and affinity it is probable that she would have called the testator and his wife father and mother, but still other terms denoting affection might have been used. Being, however, the niece of the parties (of the testator by marriage), it was more natural that she should continue to call them uncle and aunt than that she should adopt a new term. It is also objected that the testator did not account to the appellant for the income received by him on her legacy before it was paid over to her. It is urged that this shows that he assumed to set off the expense of her support against such income. This also, under the circumstances, is of no force. The appellant had been thirteen years in the testator's family supported wholly at his expense before she had any property whatever, and ten years before her grandfather's death, when it became certain that she was to receive any property in the future. While it is true that, strictly speaking, as the father of the appellant, the testator would have been bound to support her
entirely at his own expense, it was natural that after the legacy had become payable to her the testator should think it wise to apply that income to give the appellant greater educational advantages than hitherto he had felt himself able to afford. A father might have done the same, even if we assume that without authority from some court it would have been unjustified.
The order of the Appellate Division should be reversed and the decree of the surrogate of Steuben county affirmed, with costs in both courts.
O'BRIEN, HAIGHT, VANN, WERNER and WILLARD BARTLETT, JJ., concur; HISCOCK, J., not sitting.
Ordered accordingly.