in trust for the benefit of the children of the adopted daughter of a testator are excepted from the provisions of the law establishing a tax upon collateral inheritances, bequests, and devises. And in Louisiana adopted children not related by blood to the person from whom they inherit are neither ascendants nor collaterals, and, as they inherit under the law, they are not strangers to the estate, from which it follows that if the inheritance falling to them is liable to taxation under the acts of 1904 and 1906, it must be as an inheritance falling to persons who by article 214 of the Civil Code are given the status of descendants, and as thus classified it is not liable to the tax if valued at less than ten thousand dollars.35

§ 138. Persons to Whom Decedent Stood as Parent. In addition to the exemptions in favor of children born in lawful wedlock and children by adoption, an exemption is also made in favor of "any person" to whom the decedent for not less than ten years prior to the transmission "stood in the mutually acknowledged relation of a parent." The words "mutually acknowledged" are equivalent to "mutually recognized." The exemption is not confined to illegitimate children of the decedent; indeed, the fact of their being his offspring is an immaterial circumstance. The exemption is "intended to have a broader scope;

of the statute, the same as if that line had been established by nature. The legislature created the relation and extended it to the right of inheritance, not only as between the foster parent and the adopted child, but also as between the children of the adopted child and the foster parent. We think the right of succession by M. was subject to taxation at the same rate as if his mother had sprung from the loins of the testator."

In the prior case of Estate of Fisch, 34 Misc. Rep. 146, 69 N. Y. Supp. 493, it is affirmed that the exemption accorded an adopted child does not inure to its issue.

34 Estate of Winchester, 140 Cal. 468, 74 Pac. 10. 35 Succession of Frijalo, 123 La. 71, 48 South. 652.

to include, among others, those cases, not infrequent, where a person without offspring, needing the care and affection of someone willing to assume the position of a child, takes, without formal adoption, a friend or relative into his household, standing to such person in loco parentis, or as a parent, and receives in return filial attention and service. The fixing of a period of ten years, during which the relation must continue in order to entitle such person to the benefit of the exemption, is a safeguard against imposition, and when for that period this relation has been mutually acknowledged, the case is fairly brought within the policy upon which children are exempted from the imposition of a tax." 36

The fact that the person was, at the inception of the mutually acknowledged relation, an adult did not,

36 Estate of Beach, 154 N. Y. 242, 48 N. E. 516; Estate of Davis, 184 N. Y. 299, 77 N. E. 259; Estate of Thomas, 3 Misc. Rep. 388, 24 N. Y. Supp. 713; Estate of Stilwell, 34 N. Y. Supp. 1123; Estate of Lane, 39 Misc. Rep. 522, 80 N. Y. Supp. 381.

"The word 'mutual' in this statute has no abstruse signification. It means and requires reciprocity of action, correlation and interdependence, and finds its best illustration and application in relations existing between parents and children, which are always mutual": Estate of Butler, 58 Hun, 400, 12 N. Y. Supp. 201.

"The use of the words 'mutually acknowledged relation' was intended to embrace a class of persons who, while not in fact sustaining the blood relation of parent and child, had assumed and adopted that conventional relation, by mutually acknowledging it by their method of living, and mutual recognition of that relation for ten years": Estate of Nichols, 91 Hun, 134, 36 N. Y. Supp. 538.

In the following cases it was held that the relation had not been established: Estate of Moulton, 11 Misc. Rep. 694, 33 N. Y. Supp. 578, holding that there was no "dependence by the nieces upon their uncle"; Estate of Sweetland, 20 N. Y. Supp. 310; Estate of Birdsall, 22 Misc. Rep. 180, 49 N. Y. Supp. 450; Estate of Deutsch, 107 App. Div. 192, 95 N. Y. Supp. 65.

In the last two cases cited, the circumstance that the legatees referred to the testator or testatrix as "uncle" or "aunt," and the testator referred to them as "nieces," was held a material circumstance. But in Estate of Davis, 184 N. Y. 299, 77 N. E. 259, the fact that the child did not address her uncle (the testator) and aunt as father and

as the New York statute formerly stood, exclude him from the benefit of the exemption; " but the statute has been amended to provide that the relationship must begin at or before the fifteenth birthday and continue for ten years thereafter." The statute has also been amended so as to require that "the parents of such child shall be deceased when such relationship commenced." So that the exemption, as amended in 1905, excludes persons from its benefits unless the relationship was formed in their tender years and after the decease of their parents.39

The amendment of the New York statute in 1887 to exempt persons who had stood for more than ten years in the mutually acknowledged relation of children to decedents, was not retrospective in operation, so as to exempt a legatee where the testator had died before the passage of the amendatory act, but proceedings were not instituted for the collection of the tax until after the passage."

40

§ 139. Illegitimate Children.-Where the law provides that a mother and her illegitimate child shall enmother, nor they call her daughter, was regarded as of small importance. To the same effect is Estate of Spencer, 4 N. Y. Supp. 395, where the child always addressed the testatrix as "auntie"; and Estate of Wheeler, 1 Misc. Rep. 450, 22 N. Y. Supp. 1075, where the testator referred to the child in his will as "our friend."

A step-parent does not necessarily stand in the relation of a parent, within the meaning of the statute, to step-children: Estate of Capron, 10 N. Y. Supp. 23.

Children of the excepted persons were held not within the exemption in Estate of Bird, 11 N. Y. Supp. 895; Estate of Moore, 90 Hun, 162, 35 N. Y. Supp. 782.

37 Estate of Beach, 154 N. Y. 242, 48 N. E. 516.

38 Estate of Davis, 184 N. Y. 299, 77 N. E. 259.

39 Estate of Wheeler, 115 App. Div. 616, 100 N. Y. Supp. 1044; Estate of Stebbins, 52 Misc. Rep. 438, 103 N. Y. 563 (where the persons claiming the exemption were step-daughters of the decedent, and their father was still living); Estate of Harder, 124 App. Div. 77, 108 N. Y. Supp. 154 (holding that both parents must be deceased).

40 Estate of Ryan, 3 N. Y. Supp. 136.

joy all the rights and privileges one to the other in the same manner and to the same extent as if the child had been born in lawful wedlock, an illegitimate child, inheriting from its mother, is not required to pay a collateral inheritance tax." Where a father has acknowledged his illegitimate child in the manner prescribed by statute, an inheritance passing from him to the child is not subject to the collateral inheritance tax. And children legitimated by the subsequent marriage of their parents are not liable to that tax on property passing to them from their father."

§ 140. Nation, State or Municipality.—It has been decided that a legacy to the United States is subject to state inheritance taxation, and cannot be claimed exempt on the ground that the tax is on United States property, nor on the ground that the statute imposes taxes upon transfers "to persons or corporations exempt by law from taxation.""" It has also been decided

41 Commonwealth v. Mackey, 222 Pa. 613, 72 Atl. 250.

42 Wirringer v. Morgan, 12 Cal. App. 26, 106 Pac. 425. In Galbraith V. Commonwealth, 14 Pa. 258, it is decided that where a man died leaving collateral heirs, and an illegitimate son who was legitimated by an act of the legislature which was not approved until the day after the death of the father, the entire estate was subject to the collateral inheritance tax.

And in Commonwealth v. Ferguson, 137 Pa. 595, 10 L. R. A. 240, 20 Atl. 870, where an act of the legislature was, in respect to an illegitimate son, an act of adoption, not of legitimation, it was held that a devise to him from his father was subject to the collateral inheritance tax.

43 Commonwealth v. Gilkeson, 18 Pa. Super. Ct. 516.

44 United States v. Perkins, 163 U. S. 625, 41 L. Ed. 287, 16 Sup. Ct. Rep. 1073, affirming Estate of Merriam, 141 N. Y. 479, 36 N. E. 505. But in Hooper v. Shaw, 176 Mass. 190, 57 N. E. 361, it is held that a legacy paid to the United States under the statute of June 13, 1898, chapter 448, sections 29, 30, is to be deducted before paying the state succession tax under the statute of 1891, chapter 425. In the course of the opinion the court uses this language:

"Whatever the nature of the state succession tax, it is admitted and is obvious that the value of the property concerned is made the measure

that a bequest to a city is not exempt from a legacy tax." But if the property of a state or municipality, held for public purposes, is impliedly exempt from taxation, and for obvious reasons this is the general rule, then it is not illogical to hold, and it has been so held, that a testamentary gift to a city for a public use, such as a library building, is exempt from the inheritance tax;" and that a bequest to a city and county for a hospital, and to the regents of the state university for an auditorium, is also exempt." Gifts of this nature might well be regarded as exempt as bequests for charitable or educational purposes. In fact, it has been decided that a legacy to a city or town for the establishment and maintenance of a free public library for the use of the inhabitants of the municipality, and for the erection of a library building and town hall, is exempt where the statute makes an exemption of bequests to educational or charitable institutions.48

which shall pass

of the tax. This appears from the words of the act, which also show at what moment the value is to be taken. The words are 'property ... to any person.' Without throwing doubt upon the power of the state to adopt a harsher rule, such as has been applied by some of the surrogates in New York, we are of opinion that these words most naturally signify the property which the legatee actually would get were it not for the state tax imposed by the sentence in which the words occur: See In re Merriam, 141 N. Y. 479, 484, 36 N. E. 505; S. C., sub nom. United States v. Perkins, 163 U. S. 625, 630, 41 L. Ed. 287, 16 Sup. Ct. Rep. 1073. It already has been decided upon this ground that expenses of administration are to be deducted: Callahan v. Woodbridge, 171 Mass. 595, 599, 600, 51 N. E. 176.”

45 Estate of Hamilton, 148 N. Y. 310, 42 N. E. 717; Estate of McKennan, 25 S. D. 369, 126 N. W. 611, reversed, (S. D.) 130 N. W. 33. In the New York case it is held that the provision in the collateral inheritance tax law of 1887, exempting bequests to the "societies, corporations and institutions now exempted by law from taxation," was not intended to apply to bequests to municipal corporations. As to exemption of state, see Estate of Graves, 66 App. Div. 267, 72 N. Y. Supp. 815. 46 Estate of Thrall, 157 N. Y. 46, 51 N. E. 411.

47 Estate of Macky, 46 Colo. 79, 23 L. R. A., N. S., 1207, 102 Pac.

48 Town of Essex v. Brooks, 164 Mass. 79, 41 N. E. 119.