Above section does not exempt foreign corporations from the operations of the act. Matter of Smith, 59 N. Y. St. Repr. 56 (1894).

The exemption from taxation extended by Laws 1885, chap. 483, to a devise or bequest in favor of the husband of a daughter," is unaffected by the death of the daughter occurring before that of her parent, the testator. Matter of McGarvey, 6 Dem. 145 (1887).

Stepchild held to be exempt from collateral inheritance tax, where unmarried, and living at home at the time of the testatrix's marriage, to its father, though not necessarily within the exemption, otherwise as to daughter then married and living away from home. Matter of Capron, 30 N. Y. St. Repr. 948; S. C., 10 N. Y. Supp. 23 (1890).

A legacy to the husband of testator's daughter is not subject to taxation, although the daughter died before the testator. Matter of Woolsey, 19 Abb. N. C. 232 (1887).

Adopted Children.

A legacy to an adopted child, under the will of a testator who died in 1886, is not exempt, although the assessment was not actually imposed until amendment of 1887 had been adopted. Warner v. People, 6 Dem. 211 (1888).

An adopted son is not entitled to exemption from a tax upon a legacy under the will of a person who died prior to passage of Laws 1887, chap. 713, amending the act of 1885, even though the tax, although assessed prior to the passage of the amendment, had not been paid over to the county treasurer, prior to its adoption. Estate of Miller, 110 N. Y. 217; affirming 47 Hun, 394; 6 Dem. 119 (1888). In the Collateral Inheritance Law of 1885 (chap. 483), exempting "the father, mother, husband, wife, children, brother and sister, and lineal descendants born in lawful wedlock" the word "children" cannot be construed to include an adopted child; and this conclusion is confirmed by the amendment, Laws 1887, chap. 713. Id.

The amendment by Laws 1887, to Laws 1885, chap. 483, exempting certain adopted children, is applicable only to those cases where the decedent died after the amendment. In re Ryan's Estate, 3 N. Y. Supp. 136; S. C., 18 N. Y. St. Repr. 992 (1888).

A child legally adopted in a State whose laws are substantially like those of New York is entitled to exemption from the collateral inheritance tax. Matter of Butler, 58 Hun, 400; S. C., 34 N. Y. St. Repr. 189; 12 N. Y. Supp. 201 (1890).

Where a final order of the surrogate, assessing a tax under the Collateral Inheritance Act, upon a legacy to a person who for ten years had stood in the mutually acknowledged relation of child to the decedent, was made prior to the taking effect of the amendment of 1887 (chap. 713), it was held that the vested right to the tax was not taken away by the act of 1887, and that the order of the surrogate was not affected thereby.

Matter of Kemeys, 56 Hun, 117; S. C., 29 N. Y. St. Repr. 916; 9 N. Y. Supp. 182 (1890).

A legacy to the child of an adopted child is not exempt. Matter of Bird, 32 N. Y. St. Repr. 899 (1890).

Mutually Acknowledged Relationship.

Testator does not stand in the mutually acknowledged relation of parent to a legatee, a niece, within meaning of Laws 1892, chap. 309, § 2, where she is in no way dependent upon him, but he merely lives in her mother's family, and contributes to its support in common with the other members, including the legatee. Matter of Moulton (Sur. Ct. Rockland Co.), 11 Misc. 694.

A legatee who, at the age of six years, was taken into testator's family, and lived there continuously up to time of testator's death, and though not adopted was treated the same as his own children, was held to be one to whom he stood in the relation of parent, within the Collateral Inheritance Law. Matter of Wheeler, 1 Misc. 450; S. C., 51 N. Y. St. Repr. 513; 22 N. Y. Supp. 1075 (1892).

An aunt of petitioner's resided with their mother, without payment of board or rent, the aunt and mother being cotenant and petitioners, and after their mother's death, worked the farm upon which all had lived. Held, that the relation of parent and child was not established between petitioners and their aunt, so as to exempt petitioners from the payment of tax on a legacy from her. Matter of Sweetland, 47 N. Y. St. Repr. 287 (1892).

A bequest to a niece, who had lived with her aunt for twenty-eight years, and to whom the aunt had stood in loco parentis, was exempt from collateral inheritance tax, under the provisions exempting "any person to whom the deceased, for not less than ten years prior to his or her death, stood in the mutually acknowledged relation of parent.” Matter of Spencer, 21 N. Y. St. Repr. 145; S. C., 4 N. Y. Supp. 395 (1889). Legacies to persons, who, though not formally adopted, had for more than ten years stood in the mutually acknowledged relations of children to the testatrix, who died in 1887, and which were not taxed under Laws 1885, chap. 483, and no assessments made until after the enactment of Laws 1889, chap. 479,- held, exempt from the collateral inheritance tax. Matter of Thomas, 3 Misc. 388; S. C., 24 N. Y. Supp. 713 (1893).

The clause in Laws 1892, chap. 399, § 2, regarding persons to whom the transferrer has stood in the " mutually acknowledged relation of a parent," covers an illegitimate child, only where such child has been recognized by its parents and such recognition is mutual, and has continued for ten years. Matter of Hunt, 66 N. Y. St. Repr. 812 (1895).

Where a testatrix, for more than ten years prior to the time when she made her will, stood in the mutually acknowledged relation of parent to a legatee under her will, a bequest to such legatee is, by the express

language of section 2 of chapter 399 of the Laws of 1892, exempt from the 5 per cent. succession or transfer tax imposed by that statute. Matter of Nichols, 91 Hun, 134 (1895).

The exemption from taxation created by section 2 of chapter 399 of the Laws of 1892 is not limited to illegitimate children, but extends to all cases where the decedent, grantor, donor or vendor has, for not less than ten years prior to the transfer, stood in the mutually acknowledged relation of parent to the person whose interest is sought to be taxed. Id.

§ 222. Lien of tax and payment thereof.- Every such tax shall be and remain a lien upon the property transferred until paid and the person to whom the property is so transferred, and the administrators, executors and trustees of every estate so transferred shall be personally liable for such tax until its payment. The tax shall be paid to the treasurer or comptroller of the county of the surrogate having jurisdiction as herein provided; and said treasurer or comptroller shall give, and every executor, administrator or trustee shall take, duplicate receipts from him of such payment, one of which he shall immediately send to the comptroller of the state, whose duty it shall be to charge the treasurer or comptroller so receiving the tax with the amount thereof and to seal said receipt with the seal of his office and countersign the same and return it to the executor, administrator or trustee, whereupon it shall be a proper voucher in the settlement of his accounts; but no executor, administrator or trustee shall be entitled to a final accounting of an estate in settlement of which a tax is due under the provisions of this act unless he shall produce a receipt so sealed and countersigned by the comptroller or a copy thereof certified by him, or unless a bond shall have been filed as prescribed by section two hundred and twenty-six of this chapter. All taxes imposed by this article shall be due and payable at the time of the transfer; provided, however, that taxes upon the transfer of any estate, property or interest therein limited, conditioned, dependent or determinable upon the happening of any contingency or future event by reason of which the fair market value thereof can not be ascertained at the time of the transfer as herein provided shall accrue and become due and payable when the persons or corporations beneficially entitled thereto shall come into possession or enjoyment thereof.

[Revisers' Note.- L. 1892, chap. 399, § 3.]

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§ 223. Discount, interest and penalty.- If such tax is paid within six months from the accruing thereof, a discount of five per centum shall be allowed and deducted therefrom. If such tax is not paid within eighteen months from the accruing thereof, interest shall be charged and collected thereon at the rate of ten per centum per annum from the time the tax accrued; unless by reasons of claims made upon the estate, necessary litigation or other unavoidable cause of delay, such tax can not be determined and paid as herein provided, in which case interest at the rate of six per centum per annum shall be charged upon such tax from the accrual thereof until the cause of such delay is removed, after which ten per centum shall be charged. In all cases when a bond shall be given under the provisions of section two hundred and twenty-six of this chapter, interest shall be charged at the rate of six per centum from the accrual of the tax until the date of payment thereof.

[Revisers' Note.-L. 1892, chap. 399, § 4.]

See People v. Prout, 53 Hun, 541 (1889), as to interest.

Relief from the penalty for nonpayment of the collateral inheritance tax will not be granted on the sole grounds that the executors were ignorant of the law, and that such payment will be a hardship on the legatee. Matter of Plate, 59 N. Y. St. Repr. 485 (1894).

§ 224. Collection of tax by executors, administrators and trustees. Every executor, administrator or trustee, shall have full power to sell so much of the property of the decedent as will enable him to pay such tax in the same manner as he might be entitled by law to do for the payment of the debts of the testator or intestate. Any such administrator, executor or trustee having in charge or in trust any legacy or property for distribution subject to such tax shall deduct the tax therefrom; and within thirty days therefrom shall pay over the same to the county treasury or comptroller, as herein provided. If such legacy or property be not in money, he shall collect the tax thereon upon the appraised value thereof from the person entitled thereto. He shall not deliver or be compelled to deliver any specific legacy or property subject to tax under this article to any person until he shall have collected the tax thereon. If any such legacy shall be charged upon or payable out of real property, the heir or devisee shall

deduct such tax therefrom and pay it to the administrator, executor or trustee, and the tax shall remain a lien or charge on such real property until paid, and the payment thereof shall be enforced by the executor, administrator or trustee in the same manner that payment of the legacy might be enforced, or by the district attorney under section two hundred and thirty-five of this chapter. If any such legacy shall be given in money to any such person for a limited period, the administrator, executor or trustee shall retain the tax upon the whole amount, but if it be not in money, he shall make application to the court having jurisdiction of an accounting by him, to make an appointment, if the case require it, of the sum to be paid into his hands by such legatees, and for such further order relative thereto as the case may require.

[Revisers' Note.-L. 1892, chap. 399, § 5.]

See Matter of Enston, 113 N. Y. 174.

§ 225. Refund of tax erroneously paid. If any debts shall be proven against the estate of a decedent after the payment of any legacy or distributive share thereof, from which any such tax has been deducted or upon which it has been paid by the person entitled to such legacy or distributive share and such person is required to refund the amount of such debts or any part thereof, an equitable proportion of the tax shall be repaid to him by the executor, administrator or trustee, if the tax has not been paid to the county treasurer, comptroller of the city of New York, or to the state treasurer, or by such treasurer, comptroller or state treasurer, if such tax has been paid to him. When any amount of said tax shall have been paid erroneously into the state treasury, it shall be lawful for the comptroller of this state, upon satisfactory proof presented to him of the facts, to require the amount of such erroneous or illegal payment to be refunded to the executor, administrator, trustee, person or persons who have paid any such tax in error, from the treasury; or the said comptroller may, by order, direct and allow the treasurer of any county or the comptroller of the city of New York to refund the amount of any illegal or erroneous payment of such tax out of the funds in his hands or custody, to the credit of such taxes, and