The transfer tax appraiser decided that the legacy was snbj'ect to the transfer tax, and on his report the surrogate entered a formal order fixing the tax, the amount of which is not in dispute. The executor of the testatrix then apjiealed to the Surrogate’s Court, and the order was reversed upon the ground that the legacy was not taxable.
The will contains two bequests of money to the McAuley Water Street Mission. The sole question presented by the appeal is *870whether these bequests are exempt from taxation under section 221 of the Tax Law,* which, so far- as material to the appeal, then provided as follows:
a * -x- * But any property heretofore or hereafter devised or bequeathed to any person who .is a bishop-or to any religious corporation, including corporations organized exclusively for bible' or tract purposes, shall be exempted from- and not subject to the provisions of this act. There shall also b.e exempted from and not ■subject to" the provisions of this act personal property other than money or securities bequeathed to a corporation or association organized exclusively for the moral or mental improvement of men or women or for charitable, benevolent, missionary, hospital, infirmary, educational, scientific, literary, library, patriotic, cemetery or historical 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 one or more of such purposes.”
The McAuley Water Street Mission is a domestic corporation and it was duly incorporated under and . pursuant to- the provisions of chapter 319 of the Laws of 1848, entitled, “ An act for the incorporation of benevolent, charitable, scientific and missionary societies,” which, with the exception of section 6 thereof, was thereafter repealed by the Membership Corporations Law, being chapter 559-of the Laws of 1895. By virtue, of the'jiro visions of section 2 of the Membership Corporations Law, all corporations organized pursuant to the provisions of the laws thereby .Repealed, thereupon became membership corporations.
There is-no doubt but that the real and personal property of the McAuley Water Street Mission is exempt from general taxation by virtue of the provisions of subdivision 7 of section 4 of the Tax Law (Laws of 1896, chap. 908-, as amd. by Laws of 1903, chap. 204), which provides as follows:
“ 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, *871patriotic, 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, and the personal pro'perty of any such corporation shall be exempt from taxation.”
Prior to the death of the testatrix, however, the Legislature made it clear by chapter 382 of the Laws of 1900 (adding to Tax Law, § 243) that these exemptions should not be deemed to exempt bequests and devises to such corporations from the tax on taxable transfers. The sole inquiry, therefore, is as to whether the McAuley Water Street Mission is a “religious corporation” or a corporation “ organized exclusively for bible or tract purposes ” within the provisions of section .221 of the Tax Law.
The certificate of incorporation of the McAuley Water Street Mission provides: “ That the particular business and objects of such association are and shall be to do good to the souls and bodies of all who may come under its influence, by proclaiming to them the truths of the Holy Bible, and salvation through the Lord Jesus Christ, by giving them religious instruction, by lifting up the fallen, by aiding the tempted and encouraging them in their efforts to escape from their habits and appetites and by providing a place to which whomsoever will may freely come for Christian worship and fellowship, for the promotion of Godliness and for mutual encouragement in the Christian life.”
Evidence was received tending to show that the major part of the business transacted by the mission is of a charitable nature and that the major part of its funds are used for like purposes. We are of opinion that this evidence should not be considered as we agree with the learned counsel for the respondent that the status of this corporation must be determined by the statutory law and its certificate of incorporation rather than by what it has assumed to do thereunder.
. It is quite clear, I think, that the mission was not organized exclusively for bible or tract purposes. It was, as its title implies, organized for general mission purposes. The learned counsel for the respondent does not contend that the order can be sustained upon the theory that the mission was organized exclusively for bible or tract purposes. He argues that section 221 of the Tax Law *872should be construed as relating to corporations “ organized exclusively for religious, bible or tract purposes.”
That would be a most liberal construction of the statute and not, I think, in accordance with the intention of the Legislature. It is to be observed that the statute does not provide that bequests or devises to every corporation formed for religious purposes, exclusively or otherwise, shall be exempt, but that devises and bequests “ to any religious corporation ” shall be exempt. Beligious corporations -have always been classified by themselves and as separate and distinct from charitable, -benevolent and missionary societies. (Matter of Huntington, 168 N. Y. 399 ; Matter of Watson, 171 id. 256.) Missionary societies -are, in a sense, organized for religions purposes, but they are not under our statutes religious corporations, and it was decided by the Court of Appeals in Matter of Watson (supra,) that bequests and devises to missionary and Christian associations are not exempt under section 2-21 of the Tax Law (as amd. by Laws of 1901, chap. 458) from the tax on taxable transfers. Beither the act under which this mission was incorporated, nor the Membership Corporations Law, which has superseded and repealed it, authorizes the organization thereunder of á strictly religious corporation or a corporation exclusively for bible or tract purposes as contra-distinguished from missionary purposes.
The learned surrogate based his decision on Matter of Prall (78 App. Div. 301) which is clearly distinguishable upon the ground . that the Protestant Episcopal Church Missionary Society for Seamen, whose status was there under consideration, was incorporated by a special act of the Legislature (Laws of 1844, chap. 147) for religious purposes and was made subject to many of the provisions and restrictions of “ An act to provide for the incorporation of religious societies,” passed on the 5tli day of April, 1813. " (See R. L. 1813, chap. 60.) Its special charter was not repealed by the Membership Corporations Law, nor did it become subject thereto.
It is not for us to say what the statutory law ought to be; that is the province of the Legislature. Our function is to discover and declare the legislative intent. The provisions of the statute under which the exemption is claimed, and in which it must be found.if it exists (Tax Law, § 221, as amd. by Laws of 1903, chap. 41), clearly show that the Legislature recognized a distinction between religious cor-
*873porations, including corporations organized exclusively for bible or tract purposes and the other corporations organized under the act under which this mission was incorporated and under the Membership Corporations Law and intended to prescribe a different rule therefor, for it is therein provided that personal property, other than money or securities bequeathed “ to a corporation or association organized exclusively for the moral or mental improvement of men or women or for charitable, benevolent, missionary * * * scientific * * * purposes * * * or for two or more of such purposes, and used exclusively for carrying out one or more of such purposes ” shall also be exempted. These bequests to the McAuley Water Street Mission are of money, and they are to a corporation organized for missionary purposes, and are, therefore, not exempt from taxation under the act relating to taxable transfers.
It follows, therefore, that the order of the Surrogate’s Court should be reversed, with ten dollars costs and disbursements, and that the order of the surrogate made on the report of the taxable transfer appraiser should be affirmed.
Patterson, P. J., and Clarke, J., concurred.
See Laws of 1896, chap. 908; as amd. by Laws of 1903, chap. 41. The statute has been since amended by chapter 368 of the Laws of 1908.—- [Rep.