James Jourdan, by a last will and testament, gave all of hi§ estate, both real and personal, to his widow. The cash value of this estate was fixed, for the purposes of the transfer tax, at $2,141,000.48, upon which a tax of $83,050.02 has been assessed, made up as follows:
$25,000 00 at one per cent............ $250 00
100.000 00 at two per cent............ 2,000 00
500.000 00 at three per cent........... 15,000 00
1,000,000 00 at four per cent.......... 40,000 00
516.000 48 at five per cent............ 25,800 02
Total............................. $83,050 02
The State Comptroller appeals from the order fixing this tax on the ground that under the provisions of chapter 706 of the Laws of 1910 the assessment should have been made upon a basis which would produce a tax of $90,800.02, and we are of the opinion that he is entirely right in this contention. The statute provides, in so far as it relates to the question here involved, that “No such tax shall be assessed upon property, real or personal, or any beneficial interest therein so transferred to a father, mother, widow or minor child of the decedent, grantor, donor or vendor, if the amount so transferred to such father, mother, widow or minor child is the sum of five thousand dollars or less; but if the amount so transferred to a father, mother, widow or a minor child is over five thousand dollars the excess shall be taxable at the rate of one per centum upon the clear market value of such property as hereinbefore *10provided. The rates of taxation hereinbefore prescribed in this and the' preceding section are hereby designated as ‘ primary rates.’ Whenever any property, real or personal, or any beneficial interest therein which passes by any such transfer to or for the use of any person or corporation, shall exceed the amount of twenty-five thousand dollars over and above the exemptions hereinbefore provided the rate of taxation shall be as follows: Upon all amounts in excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars, twice the primary rates; Upon all amounts in excess of the said one hundred thousand dollars and up to and Including the sum of five hundred thousand dollars, three times the primary rates; Upon all amounts in excess of the said five hundred thousand dollars and up to and including the sum of one million dollars, four times the primary rates; Upon all amounts in excess of the said one million dollars, five times the primary rates.” (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 221, as amd. by Laws of 1910, chap. 106.)
It would be difficult to devise more exact language to'convey an idea, and yet the learned surrogate has argued himself into the conclusion that this language does not mean what it says, but that it means something entirely different, and which operates to deprive the State of several thousands of dollars of revenue. The scheme of the statute is very clear. It provides in the case of a widow and some others that there shall be an exemption of $5,000. If there is an amount in excess of this sum then a tax of one per cent is to be assessed upon such excess up to $25,000, and. this sum of $25,000 is the limit of the primary rate. In other words, a tax of one per cent is assessed against each and every estate in excess of the exemptions up to the sum of $25,000. This is, in contemplation of the statute, the normal or primary estate to be transferred. When a larger estate is to be transferred it must be subjected to a heavier burden, and so it is provided that where the amount is in “ excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars, twice the primary rates ” shall be assessed, and so on through an ascending scale. Obviously the clear intent of this act is to place an assessment of one per cent upon the first *11$25,000 above the exemption; then two per cent upon all excess above $25,000 up to and including $100,000; then three per cent upon all sums hi excess of $100,000 up to and including $500,000; then four per cent upon all sums in excess of $500,000 up to and including $1,000,000, and then five percent upon all sums in excess of “the said one million dollars.” There is no ambiguity in this language, and, therefore, no room for construction. The statute means just what it says, and it says the assessment shall be made at certain rates upon the first $25,000 above exemptions, and upon all sums in excess of “ said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars,” at a different rate, and this means that if there should be $50,000 transferred it would be subject to one per cent on $25,000 and two per cent upon an equal amount, and this rate would prevail “up to and including the sum of one hundred thousand dollars.” If it reached in excess of $100,000, then upon all such excess the rate would be three percent “up to and including the sum of five hundred thousand dollars,” which would, in the present case, involve the sum of $100,000 to be assessed at three per cent, and so on until it embraced the entire estate of over $2,000,000.
The effort to make this language fit the assessment which has been made is ingenious but not convincing; it requires all too much of argument in a case which is not open to construction — which is in and óf itself its own construction.
The order appealed from should be reversed, with ten dollars costs and disbursements.
Burr and Thomas, JJ., concurred; Jerks, P. J., read for affirmance, with whom Carr, J., concurred.