Grace C. Stiger, formerly a resident of Brooklyn, died August 24, 1892, at the age of fifteen years, and eight months, possessed of certain personal property and seized of certain real estate.
Among other property of which said Grace O'. Stiger was the owner at the time of her decease was one-third interest in a fund on deposit in the United States Trust Company to the credit of a certain partition suit to which the said Grace was a party.
The fund with accrued interest amounts to the sum of $76,936.26, of which $21,667.19 is accumulated interest, and $55,269.07 is the original amount paid in, and represents the share or interest of infants of the proceeds of sale of real property in partition. The value of Grace’s interest in the fund is $25,645.42.
Decedent left surviving, as her only next of kin and heirs at law, a father and brother and sister, her mother having died May 3, 1878.
*37It is contended by tbe appellant that tbis fund, being tbe proceeds of sale of real property and passing to the heirs at law and not tbe next of kin of the intestate, is not personal property under section 2 of tbe act in relation to taxable transfers of property.
I am unable to agree with tbe appellant in bis contention.
Chapter 399 of tbe Laws of 1892 provides:
“ Sec. 1. Taxable transfers. — A tax shall be and is hereby imposed upon tbe transfer of any property, real or personal, of tbe value of five hundred dollars or over, or of any interest therein or indbme therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property in the following cases:
“ 1. When the transfer is, . by the intestate laws of this State, from any person. dying seized or possessed of the property while a resident of tbe State. . . .
“ Section 2. Exceptions and limitations. When the property or any beneficial interest therein passes by any such transfer to or for tbe use of any father . . . brother, sister ... of such decedent, grantor, donor or vendor . . . such transfer of property shall not be taxable under tbis act, unless it is personal property of tbe value of ten thousand dollars or more, in which dase it shall be taxable under tbis act at tbe rate of one per centum upon tbe clear market value of such property.”
In tbe construction of statutory provisions imposing taxes, tbe law 'does not favor such an interpretation of doubtful or ambiguous provisions as will have tbe effect to exempt tbe property from tbe operation of tbe act, unless such an intention of tbe legislature shall clearly appear. People ex rel. Westchester F. Ins. Co. v. Davenport, 91 N. Y. 574; People ex rel. Savings Bank of New London v. Coleman, 135 id. 231.
Therefore, we must find in tbe terms of tbe Transfer Tax Act a clear intention to exempt tbe property in question.
Tbe rule of law which has created tbe fiction that, under certain circumstances and for certain purposes, tbe proceeds of sale *38of real property shall continue to be regarded as real property has been adopted by our courts, which have followed the rule of the common law.
In Horton v. McCoy, 47 N. Y. 21, Church, Ch. J., writing the opinion, holds that the share of an infant of real property of proceeds of sale in partition retains its character of real property during the minority of the infant, so that such proceeds descend to the heirs at law of such infant, and not to^ his next of kin or to the legatees of infants over eighteen years of age.
On the other hand, if the property be sold by executors under a direction contained in the will of a testator, there is effected an equitable conversion, and an infant’s share of such proceeds of sale is personal property, passes to legatees under the will of an ■infant over eighteen years of age, or to the next of kin and not the heirs at law of an infant dying intestate.
The infant, being seized of land in his own right, had at common law absolutely no power to sell or dispose of the same or to alter its character.
“ The Court of Chancery entertained jurisdiction in partition at an early period in England, partly to meet cases not cognizable in courts of law, and has continued ever since to exercise such jurisdiction, although the jurisdiction of courts of law has been greatly enlarged by statute. Story’s Eq. Juris, secs. 646-648.
“ Until the statute of the 13th and 14th Victoria, the interest of infants in real estate was not sold absolutely in such proceedings, but they were allowed a day after they attained twenty-one years of age to show cause against the decree. Id. sec. 652. Since the statute the infant is declared a trustee of the property, and the court is authorized by this statute to dispose of all interests held in trust. Bowra v. Wright, 3 Eng. L. & Eq. 190. But I can find no authority departing from the rule before adverted to, of impressing the proceeds thus obtained with the character of real estate until the majority of the infant.”
*39It now remains for us to determine whether, in the light of the foregoing authority, it was the intention of the legislature to exempt such proceeds of sale of real property from the transfer tax.
As we have seen, the law does not favor exemptions.
The Transfer Tax Act taxes, not the property, but the individual who receives the property as a condition to the transfer thereof to him.
In the case under consideration what kind of property is it which passes to the heirs at law of' the intestate ? Certainly not real property. What they receive is money. The tax being upon the devolution, transfer or passing of title of the property, it would be an extraordinary extension of the fiction which regards personal property as real property for certain purposes to • hold that the legislature intended to regard it as real property for the purpose of exemption when it says, “ such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten thousand dollars or more,” etc.
It is evident that the exemption was not intended for the benefit of the heirs at law as such, because, among the classes specified in the exemption clause, the individuals constituting the heirs at law and next of kin are always the same, and their interests in real property under the law of descents are in most cases identical with their interests as next of kin under the statute of distribution.
So that the reason for the exemption must be looked for in the kind of property the transfer of which is exempted.
This is real property, and the reason for its exemption probably is the fact that it already largely contributes to> the payment of all taxes.
If the fund in question is to be exempted as real property under the provision above quoted, it should be contended with greater force that the fund is subject to assessment and taxation as real property under the general laws providing for taxation *40of real property. The fund should be listed, assessed and taxed like other parcels of real property.
The effect of exempting the fund in question would be to twice exempt the interest of the infant in the real property sold. The real property sold is exempted from the tax as real property, and the fund with which it was purchased, which before was personal property and subject to the tax, now becomes real property and is exempt, so that the rule contended for would take out from the aggregate fund of personal properly otherwise taxable just the amount paid for the real property.
I am of the opinion that the fund in question is not exempt from the tax.
Decree affirmed.