In re the Estate of Lane , 39 Misc. 522 ( 1902 )

Thomas, S.

The fact that the deceased stood toward Elizabeth S. Albertson, the residuary legatee, in the mutually acknowledged relation of a parent, at least from the time of his marriage to her mother on June 29, 1897, nearly twenty years before his death, is fully established by evidence and is not disputed. At that time, Mrs. Albertson was about fifteen years and five months old, and the statute requires in order that the rate of transfer tax shall be reduced to 1 per centum, that the relationship should have begun at or before her fifteenth birthday. Tax Law of 1896, § 221, as amd. by Laws of 1898, chap. 88. For more than seven years prior to Mrs. Albertson’s fifteenth birthday she and her mother were members of the household of the decedent, and, though the proof of specific acts on his part, prior to that time, acknowledging her as his child, is not very full or specific, it is entirely uncontradicted, and.is sufficient. For example, George B. Borton and Susan W. Borton jointly affirm “ that the said Elizabeth S. Albertson went to live with John G. Lane when she was a small child, and before she was eight years old, and then became a member of his family, and that before her fifteenth birthday the mutual relation of father and daughter existed between them, and that they addressed and introduced each other as such.” The burden of proof rested on the executor, but nothing more was required of him than to establish the fact by evidence prima facie sufficient. The order appealed from will be modified by reducing the tax on the legacy to Mrs. Albertson to 1 per centum of its appraised value.

As to the second ground of appeal, the recent decision of the Court of Appeals in Matters of Jones, 172 N. Y. 575, is controlling in favor of the 'State.

Order affirmed, except as above modified.

Order modified and affirmed.