Charlotte Kimberly died on the 16th of August, 1896," and the act in relation to taxation, constituting chapter 24 of the General Laws (Laws of 1896, chap. 908), was passed May 27, 1896, and went into effect on the 15th of June, 1896. By the 3d section of that act all real property and all personal property is taxable “ unless exempt from taxation by law.” Section 4 of the act provides that “ the following property shall be exempt from taxation :
“ 7. The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for. religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, scientific, literary, library, patriotic,. historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more, of such purposes, and used exclusively for carrying out thereupon one or more of such purposes, a/nd the personal property of any such corporation or association shall be exempt from taxation. * * * Property held by an officer of a religious denomination shall be entitled to the same exemptions, subject to the same conditions and exceptions as property held by a religious corporation.” Other exemptions are .declared in the act which are not necessary to be referred to in connection with the question now under consideration.
In article 10 of that statute provision is made for taxable transfers, and section 220 provides as follows : “ A tax shall be and is'hereby *473imposéd upon the transfer of any property, real or personal, of the value of five'hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property.”
By the 'will of the testatrix she provided, for the transfer of a.' » portion of her estate, to wit, $2,000 to the Buffalo General Hospital. The Buffalo General Hospital was a party mentioned in the language of section 220 in the following words “ to persons or corporations not exempt by law from taxation on real or personal property.” The obvious intent of that section is to place a tax upon property which does not pass “ to persons or corporations ” whose real or personal property is not exempt by law from taxation. The force and effect to be given to the provision which we have quoted from section 4 of the act are such as to give an exemption of the real and personal property, held by the Buffalo General Hospital from taxation. Therefore, the legacy in the testatrix’s will of the $2,000 was not to a person or to a corporation whose real and personal property was not exempt from taxation. Inasmuch as the hospital property, real and personal, is exempt from taxation, the language of section 220 does not apply to the legacy. (Matter of Hunter, 11 N. Y. St. Repr. 704.)
In Matter of McPherson (104 N. Y. 306) it was held that the act of 1885 which preceded the act of 1896, relating to transfers and collateral inheritances was constitutional. That ease was referred to by Haight, J., in Matter of Will of Vassar (127 N. Y. 12), where he says: “ The taxes imposed by the Collateral Inheritance Act are special and not general.” And that learned judge adds: “ And the rule is that. special tax' laws are to be construed strictly against the government and favorable to the taxpayer, that a citizen cannot be subjected to special burdens without clear warrant of law.” (Citing Matter of Enston, 113 N. Y. 174.) In the course of the opinion from which 'we have quoted it is said that the general policy of the State government has been to foster and encourage charitable institutions. In the Yassa/r case it was held that where “ legacies were given to corporations which were by statute exempted from taxation upon all the property they were authorized to take and hold, that the legacies were not liable to taxation under said act.” *474The Vcissar case arose under chapter 713 of the Laws of 1887, the provisions of which are no more favorable to the respondent’s contention than the provisions found in the act of 1896, which we have quoted.
■ In Matter of Estate of Swift (137 N. Y. 77) it was held that the tax is not imposed- on property, “ but a tax on the right of succession-under a will or devolution in case of intestacy.” It was also followed .by this court in Matter of Sherman (17 App. Div. 620). That doctrine was approved in Matter of Merriam (141 N. Y. 484), and asserted and followed in Matter of Embury (19 App. Div. 218).
In Matter of Hoffman (143 N. Y. 327) the Transfer Act of 1892 was under consideration, and in that case it was intimated “ that the tax is imposed upon the right of succession to property or estates which vest in the successors severally, and not upon the property or estate of the decedent.”
In ■ the course of the opinion delivered by Andrews, Oh. J., in Matter of Westurn (152 N. Y. 99), he said : “ It has-been steadily maintained that the tax, while in a general sense a tax on the property of a decedent, is,-in its essential nature, under the legislation on the subject, a -tax on the right to succession to the property, imposed upon and collectible out of each specific share or interest given by will or derived under the Statutes of Descent or Distribution, and limited as to each share or interest to - its value, with a superadded personal liability for the payment of the tax by the person taking the interest.”
That same learned justice, in Matter of Sherman (153 N. Y. 4), said : “ The tax imposed is not, in a proper sense, a tax upon the ■ property passing by will, or under the Statutes of Descent or Distribution. It is a tax upon the right of transfer by will, or under the intestate law of the State. Whether these laws are regarded as a limitation on the right of a testator to dispose of property by will, or upon the right of devisees to take under a will, or the right of heirs or next of kin to. succeed to the property of an intestate, is not material. The so-called tax is an -exaction made by the State in the regulation of the right of devolution of property of decedents, which is created by law, and which the law may restrain or regulate.”
We think that there was .no intention on the part of the Legislature to exact from a charitable institution, like the Buffalo General Ilospi*475tal, a tax. We think the statutes to which we have referred clearly indicate an intention on the part of- the Legislature to save from the operation of the inheritance tax, by the language used in the act- of 1896, charitable and other institutions mentioned therein. The mere circumstance that, in a later part of subdivision 7 of section 4 of the act to which we have referred, a provision is found which, in express terms, declares that property held by an officer of a religious denomination “ shall be entitled to the same exemptions, subject to ■ the same conditions and exceptions as .property held by a religious corporation,” in no manner indicates an intent to deprive the institutions which are mentioned in the earlier part of that section.from the exemption expressly mentioned. Probably the language used to declare property held by an officer of a religious denomination exempt, was inserted to reach a class of cases well understood to be numerous in the State .where property is held in trust by a bishop or other officer of a religious denomination. (See Matter of Smith, 77 Hun, 134.)
The learned counsel for the respondent calls our attention to Matter of Prime (136 N. Y. 347). We do not see that it aids the .contention of the respondent. In that case it was held that the provision in the act of 1889 (Chap. 191), as well as the provision found in chapter 553 of the Laws of 1890, which exempted religious, charitable and other corporations from taxation on personal property, and from collateral inheritance taxes, applies only to domestic corporations. The same doctrine was asserted in Estate of Cullom (5 Misc. Rep. 173; affd., 145 N. Y. 593), and in Matter of Taylor (80 Hun, 589).
The foregoing views lead to the conclusion that the surrogate fell into an error in imposing a tax upon that portion of the testatrix’s estate which was given to the Buffalo General Hospital.
So much of the decree of the Surrogate’s Court of Erie county as is appealed from is reversed, w,ith one bill of costs.
All concurred, except Wabd, J., not sitting.
So much of the decree of the Surrogate’s Court as is appealed ■ from reversed,, with one bill of costs.