whenever possible, and because the statutes exempt them from the inheritance tax is no reason for departing from or modifying this ancient rule of construction favoring charitable gifts.

10

In determining what is a charity, so that a gift to it will be exempt from inheritance taxation, the law should be liberally construed to promote the benevolent purpose of the exemption. However, to ascertain whether an institution or purpose is charitable within the meaning of the inheritance tax statute, resort should ordinarily be had to the doctrine respecting charitable uses; the objects to which the institu tion is bound to devote its property must generally be charitable within such doctrine, if it would justly lay claim to exemption from inheritance taxation."1 But the fact that an institution is charitable within the doctrine of charitable uses will not necessarily exempt gifts to it from the inheritance tax, for in some of the exemptions the term "charitable" has a more restricted meaning than is given it by courts, in their desire to promote benevolent disposition, in the law relating to charitable uses.12

It has been decided that the "Woman's Christian Temperance Union" is a benevolent charitable institu

• Estate of Graves, 242 Ill. 23, 134 Am. St. Rep. 302, 17 Ann. Cas. 137, 24 L. R. A., N. S., 283, 89 N. E. 672.

10 Estate of Spangler, 148 Iowa, 333, 127 N. W. 625.

To quote from Justice Ostrander in Estate of Moore, 66 Misc. Rep. 116, 122 N. Y. Supp. 828: "I do not think the legislature ever intended to tax benevolently inclined people for the privilege of making legacies designed to relieve the state of its burdens. No more effectual way of stopping such benevolence could be well devised. While the courts have no power to prevent the legislature from establishing such a... . . policy, they should not by construction impute such an intention in cases where it does not clearly appear." 11 Estate of Landis, 66 N. J. Eq. 291, 56 Atl. 1039.

12 Trustees of Young Men's Christian Assn. v. Paterson, 61 N. J. L. 420, 39 Atl. 655; Estate of McCormick, 71 Misc. Rep. 95, 127 N. Y. Supp. 493.

tion exempt from the transfer tax; 18 and also that a Masonic lodge is a charitable institution exempt from inheritance taxation. A bequest to a corporation organized to maintain a home for friendless children and children intrusted to it by parents or committed by competent authority has been held exempt from the New York transfer tax.15 And a bequest of money to erect in a public park a drinking fountain for horses, in connection with a statue of a certain horse, the statue to bear the donor's name and the name of the horse, with the record of the speed which the horse once made, has been held exempt from the Illinois inheritance tax.16 In New York it has been decided that the bank clerks' mutual benefit association, incorporated under the act of 1848, takes a bequest subject to the inheritance tax; "7 also that a bequest to Cooper Union is not exempt."

17

18

§ 146. Foreign Charitable Institutions, in General. It has been contended that the exemption of charitable institutions from inheritance taxation applies to all such institutions, regardless of their location within or without the state granting the exemption, for, it is argued, the exemption is in recognition of the beneficent purpose of these institutions, and, inasmuch as the purpose is common to them all, wherever located, the exemption should be universal. But the courts have not yielded to this argument. They have held, with unanimity it is believed, that, in the absence of

13 Estate of Moore, 66 Misc. Rep. 116, 122 N. Y. Supp. 828. 14 Morrow v. Smith, 145 Iowa, 514, Ann. Cas. 1912A, 1183, 124 N. W. 316.

15 Estate of Higgins, 55 Misc. Rep. 175, 106 N. Y. Supp. 465. 16 Estate of Graves, 242 Ill. 23, 134 Am. St. Rep. 302, 17 Ann. Cas. 137, 24 L. R. A., N. S., 283, 89 N. E. 672.

17 Estate of Jones, 50 Hun, 603, 22 Abb. N. C. 50, 2 N. Y. Supp. 671.

18 Estate of Kucielski, 144 App. Div. 100, 128 N. Y. Supp. 768.

any language plainly indicative of a different intent, the legislature must be deemed to have made the exception for the benefit of its own institutions only, and that foreign corporations, or institutions without the state, must pay the inheritance tax, although exempt in the state of their domicile,19 and although some of their charitable work and enterprises are carried on within the state enforcing payment of the tax.20

"We are of the opinion," to quote from the New York court of appeals, "that the statute of a state granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the state, and over which it has the power of visitation and control. Such is the natural interpretation of such

19 Minot v. Winthrop, 162 Mass. 113, 26 L. R. A. 259, 38 N. E. 512; Pierce v. Stevens, 205 Mass. 219, 91 N. E. 319; Davis v. Stevens, 208 Mass. 343, 94 N. E. 556; Alfred University v. Hancock, 69 N. J. Eq. 470, 46 Atl. 178; Estate of McCoskey, 6 Dem. Sur. (N. Y.) 438, 22 Abb. N. C. 20, 1 N. Y. Supp. 782; Estate of Twigg, 15 N. Y. Supp. 548; Estate of James, 6 Misc. Rep. 206, 27 N. Y. Supp. 288; Estate of Smith, 77 Hun, 134, 28 N. Y. Supp. 476; Estate of Fayerweather, 31 Abb. N. C. 287, 30 N. Y. Supp. 273; Estate of Taylor, 80 Hun, 589, 30 N. Y. Supp. 582; Estate of Wolfe, 23 Misc. Rep. 439, 52 N. Y. Supp. 415; Catlin v. Trustees of Trinity College, 113 N. Y. 133, 3 L. R. A. 206, 20 N. E. 864; Estate of Balleis, 144 N. Y. 132, 38 N. E. 1007; Humphreys v. State, 70 Ohio St. 67, 101 Am. St. Rep. 888, 1 Ann. Cas. 233, 65 L. R. A. 776, 70 N. E. 957; Estate of Hickok, 78 Vt. 259, 6 Ann. Cas. 578, 62 Atl. 724.

Whether a corporation of a foreign state may claim exemption in New Jersey under the supplement of 1898 depends upon whether it has actually acquired corporate powers for purposes and objects which entitle to such exemption; that the legislation under which incorporation was obtained permitted the acquisition of corporate powers for objects which would have exempted will be of no avail: Estate of Rothchild, 71 N. J. Eq. 10, 63 Atl. 615, affirmed, 72 N. J. Eq. 425, 65 Atl. 1118.

20 Humphreys v. State, 70 Ohio St. 67, 101 Am. St. Rep. 888, 1 Ann. Cas. 233, 65 L. R. A. 776, 70 N. E. 957. But it has been held that a gift to a local branch of the Salvation Army to be expended within the state for the erection of a hall for the branch and the care of sick and disabled members, is exempt, although the Salvation Army is organized under the laws of another state.

legislation in the absence of a contrary intention appearing on the face of the act. The legislature in such cases is dealing with its own creations, whose rights and obligations it may limit, define and control.

It is the policy of society to encourage benevolence and charity. But it is not the proper function of a state to go outside of its own limits, and devote its resources to support the cause of religion, education, or missions for the benefit of mankind at large. The argument may have force that the state might, consistently with its proper function, give immunity from taxation to some of the foreign corporations engaged in the work of education or charity. But, however this may be, we are convinced that the statute of 1891 has no application to foreign corporations, and, having reached that conclusion, our duty is ended." "1 This doctrine has been approved by the New Hampshire and New Jersey courts.22

The fact that a domestic corporation expends money for charitable purposes and extends the field of its usefulness beyond the boundaries of the state does not render it liable to the inheritance tax, under the rule that foreign corporations do not enjoy the immunity

21 Estate of Prime, 136 N. Y. 347, 18 L. R. A. 713, 32 N. E. 1091, per Justice Andrews.

22 Alfred University v. Hancock, 69 N. J. Eq. 470, 46 Atl. 178; Carter v. Whitcomb, 74 N. H. 482, 17 L. R. A., N. S., 733, 69 Atl. 779.

In Estate of Jones, 73 N. J. Eq. 353, 67 Atl. 1035, 74 N. J. Eq. 447, 70 Atl. 1101, it was held that institutions of another state, whose object was to furnish instruction to young men destined for the ministry in a certain religious denomination, and a society (of what state does not appear) whose only purpose was the extension of gospel preaching, were entitled to the exemptions provided by the collateral inheritance tax statute in favor of religious institutions "not confined in their operations and benefactions to local or state purposes, but for the general good of the people interested therein,-whether . . organized under the laws of this state, or . . . . under the laws of some other state."

....

from such tax that domestic corporations do." But if the principal purpose of an institution, though it is affiliated with a local concern existing within the jurisdiction imposing the tax, is to carry on charitable operations abroad, as in the case of a foreign missionary society connected with a local church, such an institution is not exempt from inheritance taxation.23a 23 Balch v. Attorney General, 174 Mass. 144, 54 N. E. 490; Estate of Lyon, 144 App. Div. 104, 128 N. Y. Supp. 1004, holding a bequest to "the American Baptist Missionary Union (Boston, Mass.)" was to a domestic corporation and not subject to the transfer tax.

In Carter v. Story (N. H.), 78 Atl. 1072, the court-in holding that a legacy to a corporation, chartered to promote foreign and domestic missions, to educate indigent young men, and further other religious charities, is exempt from the inheritance tax, if the corporation has not operated beyond the state and desires to limit its work to the state-said: "The legacies to the Baptist convention are not chargeable with that tax or burden, unless, as claimed by the state, the convention holds the income for the purpose of religious and charitable uses in other jurisdictions as well as in this state. Though its corporate powers are broad enough to authorize the use of its funds in the promotion of religious and charitable objects in other states and countries, the practical administration of its affairs may show as a matter of fact that it devotes the whole or a large part of its funds to local uses; and, if it does, a legacy to it unlimited as to the uses that may be made of it, except by its corporate powers, is not subject to the inheritance tax, according to the decision in Carter v. Whitcomb, 74 N. H. 482, 490, 491, 17 L. R. A., N. S., 733, 69 Atl. 779."

23a Carter v. Whitcomb, 74 N. H. 482, 17 L. R. A., N. S., 733, 69 Atl. 779. Said the court in this case: "If its charity is adminis tered for the benefit of the public within this jurisdiction, it falls within the class which the legislature intended to favor and encourage. When, however, an auxiliary body, like the Auxiliary of the Woman's Foreign Missionary Society, though connected with a local church and existing within the jurisdiction as an association, seeks as its principal object 'the evangelization of heathen women' and the raising of funds for that purpose alone, it is difficult to discover how the public represented by the people of this state is benefited by the supposed benevolence. Even if there are 'heathen women' in our midst, this society can do nothing for their enlightenment and civilization; for, as found in the case, none of its funds 'are or can be devoted to charitable objects within the state of New Hampshire.' Its money may be sent, and presumably the principal part of it is sent, to assist in the conversion of people living in remote parts of