Citation Numbers: 165 Misc. 840
Judges: Delehanty
Filed Date: 1/7/1938
Status: Precedential
Modified Date: 2/5/2022
The State Tax Commission appeals from the order of July 29, 1937, exempting the estate from estate tax on the appraiser’s report. The ground of appeal is that the appraiser has erroneously allowed an exemption to Henry H. Bryant, the foster-father of the decedent. The decedent was legally adopted on June 10, 1903, by Henry H. Bryant, whose distributive interest in the estate amounts to $4,609.75. It is the contention of the State Tax Commission that a foster-parent is not specified as a person entitled to an exemption -under the Tax Law and is not a person entitled thereto under subdivision b of section 249-q of the Tax Law which grants an exemption of $5,000 to “ lineal ancestors or descendants.” In view of the statutory relationship existing between foster-parents and adopted children, the court holds that the foster-parent comes within the term “ lineal ancestor ” and is entitled to an exemption. The Court of Appeals recently, in Betz v. Horr (276 N. Y. 83), had occasion to pass upon the effect of section 114 of the Domestic Relations Law. The court there stated (p. 87):
In Warren v. Prescott (84 Me. 483; 17 L. R. A. 435; 24 A. 948) the court was dealing with the words “ lineal descendants ” as used in a statube. The court there said (p. 487): “ He takes as a lineal descendant of the legatee, by force of the statute. R. S. c. 74, § 10. Not as a lineal descendant by birth, but as a statutory lineal descendant and as lawfully in the line of descent as if he were placed there by birth.
“ It is as competent for the Legislature to place a child by adoption in the direct line of descent as for the common law to place a child by birth there. And that is precisely what the Legislature has done, and what it undoubtedly intended to do when in strong and emphatic language, it declared that a legally adopted child becomes to all intents and purposes, the child of the adopters, the same as if he were born to them in lawful wedlock, with the two exceptions named, neither of which, as we have already seen, is applicable to such a case.”
This reasoning is equally applicable to the term “ lineal ancestor ” as used in section 249-q of the Tax Law. The appeal of the State Tax Commission is dismissed. Submit, on notice, order accordingly.