Theodore Heilman died testate, a resident of the city of Hew York, on the 9tli day of October, 1901. His will was duly admitted to probate and letters testamentary were duly issued to Frances Hellman and Isaac H. Seligman. An appraisal of the property of the decedent was duly had for the purpose of arriving at the amount of property subject to taxation under the.Taxable Transfers Act. The decedent was a member of the Hew York Stock Exchange at the time of his death, and the appraiser in his report specified, among other personal property, that the decedent at the time of his death was the owner of a seat in the Hew York Stock Exchange, which was of the value of $65,000 and was subject to taxation. This report was confirmed by an order of the surrogate of Hew York county, and from the order so made the executors appealed to the Surrogate’s Court of Hew York county, and sought to set the same aside, upon the ground that a seat in the Hew York Stock Exchange was not subject to a transfer tax. The order appealed from was affirmed by the Surrogate’s Court by an order made and entered on the 8th day of Octobe2•, 1902; and from the order so made this appeal is taken.
*359It was decided by the Court of Appeals in People ex rel. Lemmon v. Feitner (167 N. Y. 1) that a seat in the Yew York Stock Exchange was not person al property under the restricted definition of the Tax Law (Laws of 1896, chap. 908, § 2, subd. 4, renumbered subd. 5 by Laws of 1901, chap. 490). If, therefore, the same rule is to be applied to the provisions of the Transfer Tax Law, it would necessarily follow that this species of property is not subject to a tax thereunder. It was held, however, in Matter of Glendinning (68 App. Div. 125) that such rule was not applicable to the provisions of the Transfer Tax Law, and that a succession to the amount represented thereby was subject to taxation thereunder. This decision was affirmed on appeal (171 N. Y. 684). The last decision is conclusive of the right to tax, unless the statute in respect thereto has been changed.
It is claimed, however, that the present Tax Law was not the subject of construction in the last-named case; that while the decision was rendered after the revision of the Tax Law in 1896, yet, in fact, the decedent died in 1893, and the question of liability of the property to the succession tax was determined under the Taxable Transfers Act of 1892 (Chap. 399) ; that the revision of 1896 worked a radical change in the provision of the Taxable Transfers Law, and that by its terms this property is exempted from the operation of such law. So far as material to the question presented by this appeal, the provisions of law covering the subject are as follows:
“§ 220. Taxable transfers.— A tax shall be and is hereby imposed 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, in the following cases * *.
“ § 221. Exceptions and limitations.—When the property or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, (or) sister, * * * such transfer of property shall not be taxable under
this act, unless it is personal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum. * * *
*360“ § 242. Definitions.— The words ‘ estate ’ and ‘ property,’ as used in this article, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor, or vendor,passing or transferred to those not herein specifically exempted from the provisions of this article, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees, or vendees, and shall include all property or interest therein, whether situated within or without this State.” (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 284, and Laws of 1901, chaps. 458, 173.)
By virtue of the provisions of section 220, the tax is imposed upon the transfer of any property, real or personal. Section 242 defines the words “ estate ” and “ property ” as used in the article. So defined it is taken to mean the property, or interest therein of the testator, passing or transferred to the successor thereof when not exempted by virtue of some provision of the article. (See § 243, added by Laws of 1900, chap. 382.) It has been decided that the tax imposed under this article is a tax upon the succession. (Matter of Bronson, 150 N. Y. 1; Matter of Vanderbilt, 172 id. 69.) If the transfer is of the seat in the Stock Exchange, then within the decision in People ex rel. Lemmon v. Feitner (supra), it is not subject to the tax, but if it is money, or proceeds of the sale of the seat, then it would seem to be property within the definition of the Transfer Tax Law. In the latter case a majority of the court held that the money which was invested in the seat constituted capital invested in a business. Clearly it was property of the testator before the time that he invested it in this form, and if it had descended in that form the successor in interest would have taken it subject to the payment of the tax. While invested, by reason of the restricted character of the Tax Law, and solely for the purpose of taxation, it was regarded as exempt therefrom for the reason that it was not embraced therein, but that it constituted property in a sense limited only by the conditions which attached to it has never been denied by any court. The persons succeeding to the interest in the present case do not succeed to the seat as such, nor do they take any rights thereunder. What passed in reality is the capital invested in the seat; when it is sold the capital is withdrawn. Ultimately the persons who take under the will *361of the decedent receive the capital invested by the testator in the purchase of the seat in the Stock Exchange. The testator had no power by will, or otherwise, to convey to any person, without the consent of the Stock Exchange, a right to a seat therein; consequently, the persons taking under the will do not take the seat, but they take the money invested therein. This is property that would be property in the hands of the testator, and the successors take nothing else. In the report of the appraiser this property is stated to be a seat in the Stock Exchange, $65,000. In the affidavit of the executor Seligman it appears that on or about the 15th day of November, 1901, the executors sold the said seat for the sum of $65,000, which was its value on the day of the sale. It is clear, therefore, that what the legatees take under this will is money which had been invested, and this is property within the meaning of the Transfer Tax Law, and as such is subject to the payment of the tax.
If these views are correct, it follows that the decree of the surrogate should be affirmed, with ten dollars costs and disbursements.
Patterson, J., concurred.
Order reversed, with ten dollars costs and disbursements, and proceedings dismissed, with costs.