The order modifying the original decree should be affirmed, with costs.
This appeal involves the question whether the respondents were, within the' provision of the Tax Law (Laws of 1896, chap. 908, § 221, as amd. by Laws of 1901, chap. 458), children to whom the decedent, for not less than ten years prior to his death, stood in the mutually acknowledged relation of a parent, such relationship commencing at or before their fifteenth birthdays respectively and being continuous for the ten years thereafter. The respondents were nieces of the decedent. Their mother died when they were
*198three and-seven years old respectively. The decedent and his wife were without children of their own, and after the death of their mother the respondents came to live with their uncle and aunt and remained with them until their respective marriages, more than ten years later. Whether they occupied the relationship referred to in the statute was a question of fact to. be determined from the evidence given on the hearing. The surrogate by the order appealed from and the decree as modified determined this question in favor of the respondents. The evidence seems to establish this relationship quite satisfactorily and conclusively. If the relationship did not exist as to the respondents it would be difficult to conceive of a condition of things that would establish it. It is said the neighbors knew they were nieces of the decedent, that he said they were his nieces and that the respondents called him and his wife uncle and auntie. Well, those things were true, and if they had called each other father, mother and daughters they would continually have been saying what was untrue. They treated each other in every conceivable way as parents and children. During all the years they lived with decedent he and his wife cared for them as they would for their own children, providing at their own expense for. their every want and comfort, furnishing them clothes and spending money and sending them to school. They were obedient to decedent and his wife, made them their advisers and confidants in childhood and young womanhood, asked their consent to their engagements and marriages and were married from decedent’s home. They were treated by and treated decedent and his wife in every respect as if actually parents ■ and children, the only difference apparently being that they recognized their real relationship instead of' forgetting it or misrepresenting it. What more could they do to establish the relationship referred to in the statute ? This case is distinguishable from Matter of Davis (98 App. Div. 546) in that the decedent there by the use he made of the infant’s property clearly refused to acknowledge the relationship of parent. He used her own- money for her support, maintenance and education, as he could not have done if the relationship of parent and child had existed. That case was decided by a closely divided court, and the presence of that fact in the case may well have influenced the majority in arriving at the conclusion they did. If the treatment of each other *199was such as would be found between parent and child it could hardly be said that the statute was not complied with merely because they told the truth instead of a lie when they called each other uncle and nieces instead of father and daughters.
Chief Judge Andrews said, in Matter of Beach (154 N. Y. 242, 248), with reference to section 2 of the Transfer Tax Act (Laws of 1892, chap. 399), which contained substantially the same provision as is found in this statute: “ The clause, we think, was intended to have a broader scope; to include, among others, those cases, not infrequent, where a person, without offspring, needing the care and affection of someone willing to assume the position of a child, takes, without formal adoption, a friend or relative into his household, standing to such person, in loco parentis, or as a parent, and receives in return filial attention and service.”
The evidence here discloses treatment of each other by decedent and his wife and the respondents and their daily lives in their home which speak plainer than mere words can of the relationship mutually acknowledged between them. Decedent spoke of them as his girls, and he treated them as such. He did not say they Were his daughters when they were not. They treated him and his wife as they would have done a father and mother. They used the designation of uncle and auntie truthfully instead of saying they were father and mother when they were not. We think this a proper case to apply the provision of the statute in question. There is no great public purpose to be served by giving the statute such a restricted construction as to defeat the real intention of the Legislature.
The surrogate was right in the final decision made by him, and the order appealed from should be affirmed.
McLennan, P. J., concurred.
Order appealed from reversed, in so far as it modifies the order of July 21, 1903, by striking out the tax levied and assessed upon the legacies bequeathed by the decedent, John M. Deutsch, to Mildred Conderman and Frances Richardson, with costs to the appellant.