184 N.Y. 299 | NY | 1906
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,
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 (
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.