Com'rs, 76 N. Y. 65; People v. Davenport, 91 N. Y. 574; People v. Commissioners of Taxes of City of New York, 95 N. Y. 554; Railroad Co. v. Thomas, 132 U. S. 174, 10 Sup. Ct. 68, 33 L. Ed. 302; Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 16 Sup. Ct. 83, 40 L. Ed. 247. A tax is a forced contribution from the citizen towards defraying the expenses of government, and, in order that this burden may be shared generally and proportionately, statutes granting exemption should be construed with great care and caution. It has been recently declared by the court of appeals that "it has never been the general policy of the state to wholly exempt the property, either real or personal, of incorporated churches, colleges, or charitable institutions." Catlin v. Trustees, 113 N. Y. 133-141, 20 N. E. 864, 3 L. R. A. 206. And while it may be said that the relator is connected with Hamilton College, and that its chapter house is in a certain sense an adjunct thereto, yet so far as ownership, occupation, and control are concerned it is entirely independent of the college. Its primary purpose is to afford the members of the fraternity owning it with an abiding place while attending college. It is there that they eat and sleep; it is there that they mingle with each other in social intercourse; it is there that they entertain their friends, and to that end indulge in dancing and other similar amusements. In short, it is to all intents and purposes a club house, a place for rest, recreation, and fraternal intercourse, rather than for the purposes for which it is claimed to have been organized, which purposes are plainly secondary and incidental; and, such being the case, we do not see how, within the well-settled policy of the law to which allusion has just been made, it is entitled to exemption from taxation. No case arising under precisely the same circumstances has been called to our attention, but there are numerous cases to be found in the reports of this and other states which involve similar considerations, to two or three of which we will now refer. In that of People v. Sayles it appeared that the relator was a corporation organized exclusively for the mental and moral improvement of men and women and for benevolent purposes. Any respectable young man could become a member and enjoy its privileges upon the payment of a nominal membership fee. It owned a building in the city of Albany, of which a portion was used for the purposes of a public library, gymnasium, reading, lecture, and bath rooms, while the remainder consisted of a spacious and elaborately constructed theater or hall, suitable for public meetings, exhibitions, and entertainments. This hall was leased at fixed rates of rental, and used for such purposes only, the income therefrom being devoted exclusively to the maintenance of the library. The court at special term, upon this state of facts, directed that the assessment levied by the assessors upon its real estate should be stricken from the assessment roll. Upon appeal the order was reversed by the appellate division, and the decision of the latter court was subsequently affirmed by the court of appeals. 32 App. Div. 197, 53 N. Y. Supp. 67; Id., 157 N. Y. 677, 51 N. E. 1093. In the case of People v. Sayles, 32 App. Div. 203, 53 N. Y. Supp. 65, a like conclusion was reached upon a very similar state of facts, and the decision of the appellate division was also affirmed by the court of appeals. 157 N. Y. and 111 New York State Reporter 679, 51 N. E. 1092. The case of People v. Neff, 34 App. Div. 83, 53 N. Y. Supp. 1077, is one where the relator was organized under chapter 94 of the Laws of 1813, entitled "An act to incorporate medical societies for the purpose of regulating the practice of physic and surgery in this state." It maintained a medical library which was open to the public, and furnished rooms for the meeting of medical and charitable societies. Its property, however, was in fact a medical club house, where the members of the medical profession were wont to meet for mental improvement and such incidental benefits as flow from the association and co-operation of effort, and it was held by the appellate division in the Second department that in these circumstances the relator did not bring itself within the exemption clause of the statute. Under the Connecticut General Statutes (section 3820) exempting from taxation "buildings belonging to and used exclusively for ecclesiastical societies," it was held that a country house of three colleges of the Society of Jesus, to which the college professors were accustomed to go for vacation and rest, and while there to engage in certain prescribed religious exercises, and which, when they were absent, was used as a retreat for priests and laymen who desired seclusion and the direction of the members of the society, was not exempt. The court, after reciting the foregoing facts, expressed its conclusion in the following words: "Thus it seems to be a place of resort for a certain privileged class in the usual vacation periods, for purposes of rest and recreation. Although the persons resorting thither enjoy certain religious privileges, and are subjected to certain rules and regulations of an ecclesiastical nature, yet the organizations, the people who control them, and the people who are affected by them, bear very little resemblance to ecclesiastical societies as they exist and are understood in this state and by the people connected with them. * The property in question is used rather for the temporal wants of the members of the Society of Jesus than for instructing and educating young men for the priesthood. It resembles club houses, in that it is designed chiefly for the recreation of its members. Therefore we say that the property is not used exclusively for the purposes contemplated by the statute." Manresa Institute v. Town of Norwalk, 61 Conn, 228, 23 Atl. 1088. Under a statute of the state of Oregon which provided that "property of all literary, benevolent, charitable and scientific institutions incorporated within this state, and such real estate belonging to such institutions as shall be actually occupied for the purposes for which they were incorporated," shall be exempt from taxation (Hill's Ann. Laws, § 2732, subd. 3), it was held that a society providing relief for its indigent members only was a charitable institution, and as such would be entitled to exemption, but that property owned by it, and used for revenue, and not actually occupied by the society, would not be entitled. to such exemption. Society v. Kelly (Or.) 42 Pac. 3, 30 L. R. A. 167, 52 Am. St. Rep. 769. In the case of Congregation Kol Israel Anschi Poland v. Mayor, etc., of City of New York, 52 Hun, 507, 5 N. Y. Supp. 608, it was held that the building of which the principal story was used as a synagogue, while the lower story contained the living rooms of the janitor of the synagogue, and bath tubs and plunging pools for men and women, which were accessible for a pecuniary consideration payable to the janitor, in licu of salary, to all Jews, whether worshipers at that synagogue or not, was not exempt from taxation, for the reason that the building was not "exclusively used for one or more of the purposes" specified in the statute. We think that the principle enunciated in the foregoing cases, when applied to the case under consideration, requires that the order and judgment appealed from should be reversed. Order and judgment reversed, with costs, and writ of certiorari quashed. All concur. (75 App. Div. 78.) In re MCKAY. (Supreme Court, Appellate Division, Fourth Department. July 8, 1902.) 1. REAL ESTATE-INTEREST OF MINOR-SALE BY EXECUTOR. Where real estate is devised to an infant with a discretionary power of sale in executors, the proceeds of such sale, belonging to the infant, are personal property, passing on her death to her administrator, and not to her heirs, under the power of the will, and not by the doctrine of equitable conversion. Appeal from surrogate's court, Steuben county. Proceedings in the matter of the settlement of the account of Charlotte McKay, as administratrix of Inez McKay. From a surrogate decree settling such accounts, and striking out a certain sum which the administratrix had charged herself (75 N. Y. Supp. 1069), appeal is taken. Modified and affirmed. Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ. F. A. Robbins, for appellants. HISCOCK, J. This appeal is from that portion of the decree in question which struck out an item of $7,173.88, with which the above administratrix originally charged herself upon this accounting. Said sum was produced by the sale of the intestate's interest in certain real estate during her lifetime. Said interest in said real estate had descended to her from her father, and the surrogate, in striking out said item from the account of her administratrix, adopted and followed the theory, urged by the respondent herein, that the proceeds of said real estate were to be regarded as still real estate, and therefore not to be included in the accounts of the administratrix, but to be distributed and disposed of otherwise. We think that the learned surrogate committed error in this decision, which calls for a reversal of his decree upon this point. Hiram C. McKay died November 18, 1889, leaving, him surviving, a widow, some children, of whom this intestate, Inez, was one, and two grandchildren, who are the appellants herein. He left a considerable quantity of real estate, and also a last will and testament whereby he appointed one Gillett executor and trustee. Said will attempted to create various trusts, and also to confer upon said executor and trustee 11. See Conversion, vol. 11, Cent. Dig. § 37. and 111 New York State Reporter a power of sale of the real estate. After said will was admitted to probate, and said Gillett had entered upon the discharge of his duties, an action was brought in the supreme court for the construction and interpretation of the will. The result of said action was a judgment declaring that the purported trusts were invalid, and that the testator's real estate, including that which produced the item in dispute herein, descended to his heirs as though no will had been left. It also adjudged that the power of sale was valid and operative. It is not necessary for us upon this appeal to inquire into the correctness of said judgment construing said will, for, concededly, the same constitutes an adjudication binding upon all the parties to this proceeding and appeal. Thereafter, and, as stated, during the life of the intestate, Inez McKay, said executor and trustee, in pursuance of the power of sale conferred upon him, sold a large proportion of Hiram McKay's real estate; and the share of Inez produced, over and above any purposes to which said proceeds were applicable, an amount which at the time of this accounting aggregated, with interest, the sum of $7,173.88. Inez, during all of this time and at the date of her death, in 1898, was an infant. Part of the proceeds of her real estate were paid to her guardians during her life, and the remainder to the respondent after her death. Upon these principal facts it was, as above stated, upon the accounting in surrogate's court, urged by the administratrix, and held by the surrogate, that such proceeds of said real estate continued to be real estate, and must be so treated upon this accounting. This conclusion was reached in the court below, and is now urged upon us by the learned counsel for the respondent, in substance, by the reasoning that, the trusts in Hiram McKay's will having been declared void, they did not require or operate to produce any equitable conversion of his real estate into personalty; that the power of sale held valid was discretionary; and that, therefore, that did not operate to produce such an equitable conversion; that under those circumstances the proceeds of the real estate, when paid to Inez McKay through her representatives, were still real estate, and that neither they nor she, being an infant, had power by any act or intent to convert the same into personalty. We think that, in this course of reasoning, sight has been lost of the distinction between an equitable and an actual conversion duly and legally made. We will assume, for the sake of the argument, that respondent's contention is correct, that neither the will with its purported trusts eradicated, nor the discretionary power of sale left standing, worked an equitable conversion of the real estate. To avoid confusion, however, we must keep in mind just what that concession means, and just what an equitable conversion means. equitable conversion arises where, owing to the binding directions of a will, it becomes proper and legal for a court to treat real estate as having been converted into personal property, although there has been no actual exchange. For instance, it is substantially conceded by the respondent upon this appeal that, if the trusts in Hiram McKay's will had been valid, in order to fulfill them it would have been An necessary to sell the real estate, and that in that case it would have been proper to have regarded and treated his real estate as converted into money as of the time when the will took effect, and before there had been any actual disposition of it. In this case, the appellants are not compelled to rely upon any such theory as above set forth. Under what must be conceded in this action to be a valid power of sale, the executor and trustee has actually and physically converted the real estate into money, and the real question presented is whether-somewhat reversing theories-we are to treat and regard actual personal property as still being real estate. aware of no principle, legal or equitable, which, as between the parties here present, either requires or authorizes us to indulge in any such fiction. It was, of course, proper that the executor, after having executed the power of sale and discharged any legal obligations which attached to the proceeds thereof, should pay back the surplus to the party who owned the real estate. This was in accordance with plain and well-settled principles lying outside of the proposition urged by respondent here. Inez McKay had become the owner of certain real estate, subject to a power of sale, and, when this power of sale was exercised, if any surplus was left she was entitled to the same in the place of her real property which had been sold; but this disposition did not, in our judgment, at all involve going to the extent now urged. The counsel for the respondent has pressed upon our attention the rule that, when certain statutory proceedings and actions are instituted for the sale of an infant's real estate, the proceeds remaining or coming back to the infant are still to be regarded as real estate. He calls attention to this rule as supporting the one claimed by him in this case, that the sale of the infant's real estate under the power could not change it into personal property. We do not, however, think that the two cases are analogous. In the first class of cases, after an infant has become vested with the title to real estate, proceedings are instituted against it for special purposes, and it is proper to hold that, by such proceedings, a change in the nature of the infant's property shall not be accomplished which he himself could not bring about. In this case, however, the title to the real estate, when it descended to the infant, was charged with, and subject to, a certain power, which the testator had a perfect right to create. While he owned the real estate, and had the power to make any disposition or change in it he desired, he made his will, which conferred upon another the same power to change its nature after the title had gone to his heirs. The disposition made in this case was in pursuance of an authority conferred before the infant got her title, and subject to which she took it. While, unquestionably, the infant was entitled to receive the surplus proceeds of her real estate sold under the power of sale as she did receive them, and it is therefore an abstract question whether, as between the executor and herself, the proceeds were to be treated as real or personal property, we think it would be embarrassing and confusing to hold that, as between her estate and her successors, such money continued to be real estate |