When Not Included in Legacy to Children. § 221 widow of a deceased adopted son, who, by the provisions of section 64* of the Domestic Relations Law, was a son of the testator with all the results which that relation implies, is the "widow of a son " within the fair and legal intendment of the statute, and if taxable the rate must be at 1 per cent., under section 221 of the Transfer Tax Law. Matter of Duryea, 128 App. Div. 205. 298. Adoption under the Laws of Another State. The court held, in the Matter of Butler, 58 Hun, 400, 12 N. Y. S. 201; affd., 136 N. Y. 649, without opinion, that it was not necessary that the proceedings for adoption should have been taken under the laws of this State, to entitle an adopted son to the exception. 299. Not Included in Legacy to Children in Case of Father's Death. The testator's will provided: "If either of my sons shall die before my wife (who was given a life estate in all the decedent's property) his share shall go to his children, and, in default of children, to my surviving children and the children of such of them as may be dead." Held, that, upon the death of one of the sons before the death of decedent's wife, leaving only an adopted child, such adopted child was not the son's child within the meaning of the clause of the will above quoted, and particularly in view of the statute in force at the time the will was made in 1888. (§ 10, chap. 830, L. 1873, amended by chap. 703, L. 1887.) Matter of Hopkins, 102 App. Div. 458. *Now section 114 of chapter 19 of the Laws of 1909, being chapter 14 of the Consolidated Laws. While section 221 of the Transfer Tax Law exempts transfers to adopted children from taxation to the same extent as natural children, yet this section does not mention their heirs and next of kin, but does include in the 1-per cent. class "any lineal descendant of such decedent." The words " lineal descendant " must be read in connection with the statute governing the effect of adoption, which makes the child by adoption and his heirs the same in every respect, affecting inheritance or succession, as an actual child and his heirs. In this connection the Court of Appeals held, in the Matter of Cook, 187 N. Y. 253–261: "A lineal descendant is one who is in the line of descent from a certain person, but, since the Domestic Relations Law went into effect, not necessarily in the line of generation. The line of descent is the course that property takes according to law when the owner dies. By force of the statute, that course is the same in the case of adopted children that it is in the case of own children. In the eye of the law, therefore, adopted children are lineal descendants of the foster parent. They are in the line of descent from him, through the command 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." 301. Id. Does Not Include Grandparents. In the Matter of Katz, N. Y. Law Journal, June 29, 1908, Surrogate Beckett held that the term "lineal descendant" as mentioned in section 221 of the Tax Law does not embrace within its signification a person standing in the relationship of grandparent, and that the rule of statutory construction laid down in Smith Id.; Who Included in the Term. § 221 v. Gilon, 66 App. Div. 25; Matter of Miller, 110 N. Y. 216, was controlling in that case. 302. Id. Does Not Include Nephews and Nieces. "Lineal descendants " means the direct descendants of the testator or intestate, and not the nephews and nieces. Matter of Miller, 45 Hun, 244. 303. When the Word "Children " Is Equivalent to "Descendants." A testatrix, after creating a trust in real estate to pay the income equally to her five children during the lives of two of them, and directed that, if a child died during the trust, his or her share of the income should pass to his or her surviving "lawful children," and one of the sons died after the testatrix, leaving a daughter, who also died and left children, held, that the grandchildren of the deceased son were entitled during the trust to one-fifth of the income, and that the word "children" should be read as meaning " descendants." Matter of Bender, 44 Misc. Rep. 79, 89 N. Y. S. 731. - 304. "Husband" of a Daughter Includes "Widower." 66 A legacy to the husband of a daughter is exempt, although the daughter died before the testator. Matter of Woolsey, 19 Abb. N. C. 232; Matter of McGarvey, 6 Dem. 145. And this is so even if the husband remarried prior to the transfer to him. Matter of Ray, 13 Misc. Rep. 480, 35 N. Y. S. 481. See opinion as to the use of the word "widower" in the statutes. 305. Mutually Acknowledged Relation of a Parent. Chapter 713 of the Laws of 1887 amended section 1 of the Act of 1885 by providing that transfers to any § 221 Mutually Acknowledged Relation of Parent. 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 were to be considered the same as those passing to near relatives, such as father, mother, husband, wife, child, brother, sister, etc. This provision was retained in the amendments to this section in practically the same form until 1898. 306. The Relationship Can Be Established as between Strangers in Blood. The General Term of the First Department, in the Matter of Hunt, 86 Hun, 232, held that this provision was intended to apply only to illegitimate children, for the reason that the legitimate child was mentioned first in the act, next the adopted child," and next, we think, is intended to be mentioned the illegitimate child who has been for ten years acknowledged as the testator's child, and such acknowledgment has been mutual," and that this view was strengthened by the fact that immediately following this was the words or any lineal descendants of such decedent born in lawful wedlock." 66 The Court of Appeals, in the Matter of Beach, 154 N. Y. 242, overruled this decision, and held that this exception was not limited to illegitimate children, but extends as well to persons not of the blood of the testator, where the relationship of parent had been mutually recognized for ten years prior to the testator's death. This case also held that the fact that the legatee was an adult at the inception of the relationship would not exclude the legatee from this provision, as the words "any person " included both minors and adults. In the amendment to this section by chapter 88, Laws Id.; Parent and Child. § 221 1898, in effect March 28th of that year, the word "child" was substituted for the word " person, which had been previously used, and the clause providing that such relationship must have commenced at or before the child's fifteenth birthday, and be continuous for ten years thereafter, was added. The amendment to this section by chapter 368, Laws 1905, in effect June 1st of that year, further provides that the natural parents of such child must be deceased when such relationship commenced. By chapter 310 of the Laws of 1908, in effect May 18th of that year, this section was further amended so that in the case of a stepchild the provision in relation to the parents of such child being dead when the relationship commenced does not apply. 307. Id. Construction of the Statute. In the Matter of Davis, 98 App. Div. 546, 90 N. Y. S. 244, it was held that the essential feature in the required relation is that it must be mutually acknowledged to exist; however fervent may be the affection existing between the parties, however close may be their relations as members of the same family or household, however liberal may be the expenditures of the decedent for the education, maintenance, and welfare of the alleged child, the latter is not entitled to the exemption unless the parties mutually recognized that they were, in effect, parent and child. That where it appears that the parties in question called themselves and were known as uncle and niece instead of father and daughter, and that the so-called uncle, upon being appointed general guardian of his so-called niece, charged the expense of her support and maintenance against the income of property be |