I dissent. The provision of the Transfer Tax Law pertinent to the question presented reads as follows: “ 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 *12dollars 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 pri- ' mary 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. 706.) The question is the interpretation of the sentence, “ 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.” The learned surrogate (See 70 Misc. Rep. 159) has decided that the maximum amount subject to twice the primary rates is $100,000, i. e., that after $25,000 has been taxed at the primary rate," then $100,,000 is to be taxed at twice that rate. My associates hold that the maximum amount is $75,000 instead of $100,000. The language is susceptible of still another interpretation, namely, that whenever an amount is greater than $25,000, that amount up to and including the amount of $100,000, not first excising' $25,000 thereof as subject to the primary rate, is subject to twice the primary rate.
Here is plain indication that “ The real meaning of the Legislature is not clear,” and hence the rule obtains that “ all doubts as to the construction of a taxing statute are to be resolved in favor of the taxpayer.” (City of Rochester v. Fourteenth Ward Association, 183 N. Y. 23; Matter of Enston, 113 id. 174.) In the latter case the court say: “But the executors come into court claiming that the special taxation provided for in the law of 1885* is not applicable to them, or the property which they represent. In such a case they have the right, both in reason and in justice, to claim that they shall be clearly brought within the terms of the law before they shall be *13subjected to its burdens. It is a well-established rule that a citizen cannot be subjected to special burdens without the clear warrant of the law. The following authorities furnish the true rule applicable to such a case: Cooley on Taxation (2d ed. 275); United States v. Wiggleworth (2 Story, 373); Powers v. Barney (5 Blatch. 203); United States v. Watts (1 Bond, 583); Doe v. Snaith (8 Bing. 152); Green v. Holway (101 Mass. 243).”
As between the surrogate and my associates I am inclined to adopt the conclusion of the surrogate. In order to declare that the maximum amount that is subject to only twiee the primary rates is $75,000, that amount must not only satisfy the statute that it is “in excess of the said twenty-five thousand dollars,” but the other requirement thereof, “and up to and including the sum of one hundred thousand dollars.” This requirement is not met by $75,000 save by the construction that the words “in excess” mean the difference between $25,000 and $100,000. It is well recognized that the expression “ in excess ” may indicate the difference between two numbers. But the question is whether they were used to express this idea in this instance. In a foregoing part of this very section the Legislature has provided: “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,” etc. Then follows the provision heretofore quoted. Here is a plain direction that “the excess” shall be taxable. There is no apparent reason, if the Legislature intended that only “ the excess” of $100,000 over the $25,000, namely, $75,000, should be subject to twice the primary rates, that it would not have employed the same language to express the same idea. Certainly there would have been uniformity in expression if, for example, the Legislature had enacted, “but if the amount transferred is over twenty-five thousand dollars the excess up to one hundred thousand dollars shall be taxable at twice the primary rates.” But instead of using such expression, or one synonymous, it departs to provide: “Upon all amounts in excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars.” It is not the “ excess,” but upon “ all amounts in excess.” It is not the *14excess up to $100,000, or even all amounts in excess up to $100,000, but “ all amounts,” including “ the sum of one hun- , dred thousand dollars.” And, then, a further provision reads, “Upon all amounts in excess of the said one hundred thousand dollars,” so that the said $100,000 as theretofore used is not regarded as having expressed the limit, but as an amount which is subject to twice the primary rates only.
As between the two constructions up for review, I think the words “all amounts in excess” refer to any amount that is greater than, larger than and thus exceeds $25,000, up to and. inclusive of the amount of $100,000. I vote to affirm the order.
Carr, J., concurred.
Order of the Surrogate’s Court of Kings county reversed, with ten dollars costs and disbursements, and matter remitted to the surrogate to proceed in accordance with opinion.
Laws of 1885, chap. 488.— [Rep.