Catherine E. O. Linkletter died October 13, 1907, leaving a will which contained the following provision: “ I give, devise and bequeath all my property, real, personal or mixed, to those persons, relatives of my full blood only, who would be entitled to receive nay personal estate in case of my death unmarried and intestate, *310and had I no relatives of the half blood, and in the shares and proportions fixed by law for the distribution of personalty.” The respondent, George O. Linkletter, the son of a deceased sister, takes under the will the sum of $30,434.30. After the death of his mother, his father and the testatrix had intermarried. The question involved on this appeal is whether the respondent’s share shall be taxed at the rate of one or five per cent. Section 221 of the Tax Law was amended by chapter 204 of the Laws of 1907, so as to include a stepchild in the exempt class in the case of a transfer of property less than $10,000 in value, and in the one per cent class in case of the transfer of property of the value of $10,000 or more.
If the bequest had been to the respondent by name, there would would be no doubt that, under the statute in force at the time, his share would be taxable at the rate of one per cent,, as he was a stepchild. But under the will he takes as nephew, precisely as he would take under the Statute of Distributions, had there been no will. As stepchild he could not take under the statute, and the will expressly provides that the property shall go to the relatives of the full Hood only in the “ shares and proportions fixed by law for the distribution of personalty in cases of intestacy.” Plainly, therefore, the respondent takes as nephew, as one of a class; and it seems to me that the case is precisely the same as though he took under the Statute of Distributions, in which case it seems obvious that a tax of five per cent would be imposed, because in that case the transfer would be to the nephew, not to the stepson. The fact that the transferee happened to be a stepson as well as nephew would be immaterial because the character of the transfer, the capacity in which the transferee took, would determine the taxability of the property transferred.
If the tax were a property tax, a different question would be presented. It is unnecessary to cite authority upon the proposition that the tax imposed by the Transfer Tax Law is a tax, not on property, but on the right of succession to property; and it seems, therefore, that the capacity in which the transferee takes should determine whether he comes within the exceptions of section 221.
The question is novel and not likely to arise often. It is contended with some force that a transfer to the respondent as one of a class should be taxed the same as a bequest to him by name. The decision *311turns on the construction of sections 220 and 221 of the Tax Law. Section 220 (as amd. by Laws of 1905, chap. 368) provides for a tax of five per cent upon every transfer of property of the value of $500 or over. Section 221 creates certain exceptions and limitations to section 220, and I think that, as the tax is on the right of succession, section 221 must be construed with reference to the capacity in which that right is claimed. A transfer to or for the use of a father, mother, husband, wife, child, stepchild, etc., is to be taxable only if the property transferred is of the value of $10,000 or more, and then at the rate of one per cent. Of course, there is a transfer in this case to the respondent, who was a stepson, but the transfer was not made because of that relationship. In fact, had he sustained no other relation to the testatrix, he could not have taken. If the transfer had been to him by name, it would doubtless have been prompted by the fact of his relationship as stepson; and, if not in terms, it would in fact have been a transfer to him as such.
In construing section 221 it must not be overlooked that it creates exceptions to and limitations upon the general rule of section 220. I think that, for the purposes of this case, the respondent must be tr.eated solely as a nephew, and that he does not come within the exception.
The order should be modified so as to impose a tax of five per cent, and as thus modified affirmed, with ten dollars costs and disbursements to the appellant.
Hirschberg, P. J., Gaynor, Burr and Rich, JJ., concurred.
Order of the Surrogate’s Court of Nassau county modified in accordance with opinion, and as modified affirmed, with ten dollars costs and disbursements to the appellant.