§ 220 Id.; Construction of the Statute. longing to her, which he would not have been entitled to do if the parties had really sustained the relation of parent and child, that the niece is entitled to the statutory exemption is erroneous. The Court of Appeals (Matter of Davis, 184 N. Y. 299) reversed the Appellate Division in this case, holding that the proper construction of the statute was settled in the Matter of Beach, 154 N. Y. 242, where Judge Andrews, writing the unanimous decision of the court, said: "The clause, we think, was intended to have a broader scope; to include, among others, those cases not infrequent where a person without offspring, needing the care and affection of some one 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 affection and service." The court further held that the fact that the child did not address her uncle and aunt as father and mother, nor they call her daughter, was of but slight importance. To give effect to it would be to sacrifice conduct and acts to appellations which are often the result of accident. The fact that testator did not account for the income received by him on her legacy before it was paid over to her is, under the circumstances, of no force. The child had been thirteen years in the testator's family, supported wholly at his expense before she had any property whatever, and while, strictly speaking, as the father of the child, the testator would have been bound to support her, it was natural that after the legacy had become payable to her the testator should think it wise to apply that income to give the child greater educational advantages than hitherto he had felt himself able to afford. Id.; Relationship Must Be Mutual. § 221 The Matter of Deutsch, 107 App. Div. 192, was a case similar to the Matter of Davis, 98 App. Div. 546, and after the decision of the Court of Appeals in the Matter of Davis, 184 N. Y. 299, was handed down, the appeal to the Court of Appeals in the Deutsch case was discontinued by the Comptroller, and the order of the surrogate exempting the legacies to decedent's two nieces was affirmed. 308. The Relationship Must Be Mutual. While the courts are inclined to construe the statute liberally in favor of those sought to be brought within its provisions, yet the existence of the relation in each case must be determined from the facts and circumstances surrounding it, as there is no fixed rule for such determination aside from the fact that the acknowledgment of the relationship must be mutual. The court said in the Matter of Butler, 58 Hun, 400403: "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 the relations existing between parents and children which are always mutual." See also Matter of Nichols, 91 Hun, 134–139, 36 N. Y. S. 538; Matter of Stilwell, 69 N. Y. St. R. 381, 34 N. Y. S. 1123. 309. When Relationship Is Established. Where a child was taken in the testator's family when six years old, and was educated and supported by the testator, and continuously resided with him until he died fifty years later, held, that an annuity to her of $300 was not taxable, although the testator designated her in his will as "friend" instead of § 221 Failure to Show Relationship. "daughter." Matter of Wheeler, 1 Misc. Rep. 450, 22 N. Y. S. 1075. In the Matter of Hanford, not reported, but affirmed (101 App. Div. 612, 92 N. Y. S. 1127) by the Appellate Division of the Third Department on opinion below, the surrogate of Schenectady county held that, where the testator and his niece, in referring to each other, had always used the terms "Uncle George " and "Laura," and the uncle in his will referred to her as "Laura Hanford Briggs, now living with me, " that the niece was entitled to the benefit of the exception, it appearing that she entered the testator's home when she was ten years of age, and from that time until the testator's death, a period of twenty-four years, there was mutual affection, protection, discipline, and control, paternal in their nature on the part of the uncle, and dependence, obedience, and respect, filial in their nature, on the part of the niece. In one of the earlier cases (Matter of Spencer, 21 N. Y. St. R. 145–153, 4 N. Y. S. 395), the court, in commenting upon the evidence tending to show whether this relationship had existed between an aunt and niece, said: If the evidence conclusively shows that the parties understood their relations were paternal, and they thus lived together in their belief, discharging their duties and obligations to each other upon the theory that such relations existed, such manner of life is a mutual acknowledgment of the relation which each sustains to the other. 310. Failure to Show the Relationship. Where an aunt took charge of her two orphan nieces, aged five and ten years, respectively, at their own resi dence, which she leased, and where she furnished board Burden of Proof; Witnesses. § 221 to them at high rates, the aunt charging every expense against the nieces' separate estate, the fact that she addressed them as "my dear girls " is insufficient to establish the aunt" in the mutually acknowledged relation of a parent " to the nieces, so as to except them from the provisions of the Transfer Tax Law, upon legacies from the aunt to said nieces. Matter of Birdsall, 22 Misc. Rep. 180-189, 49 N. Y. S. 450; affd., 43 App. Div. 624, 60 N. Y. S. 1133. "to 311. Burden of Proof. The burden of proof is upon a person claiming the exemption conferred by the statute to establish that she is entitled to it. Matter of Davis, 98 App. Div. 546, 90 N. Y. S. 244, reversed on other points Matter of Davis, 184 N. Y. 299. See also Matter of Dennison, N. Y. Law Journal, August 17, 1903. 312. Proof of Relationship. Where an executor establishes by prima facie evidence, which is undisputed, that his testator stood to the residuary legatee in the mutually acknowledged relation of a parent, the tax must be fixed at 1 per cent. Matter of Lane, 39 Misc. Rep. 522, 80 N. Y. S. 381. 313. Beneficiary Is a Competent Witness. In the Matter of Brundage, 31 App. Div. 348, 52 N. Y. S. 362, the court held that the beneficiary was not rendered incompetent by section 829 of the Code of Civil Procedure to testify in regard to confidential communications and acknowledged relations growing out of an agreement between him and the decedent, for the purpose of showing the acknowledged relation of parent and child between the decedent and beneficiary. www.w 314. Relation of the Parties-Facts Establishing. The evidence being undisputed that the decedent stood in the relation of a parent to the residuary legatee for twenty years from the time she was fifteen years and five months old, when he married her mother, and that she had been a member of his household for several years before that time, during which time they addressed each other as father and daughter, held that the tax on the legacy to her should be reduced to 1 per cent. Matter of Lane, 39 Misc. Rep. 522, 80 N. Y. S. 381. 315. Living as One Family Does Not Establish the Relationship. Living as one family does not establish the relationship between an uncle and his nieces. Matter of Moulton, 11 Misc. Rep. 694, 33 N. Y. S. 578. To same effect, Matter of Sweatland, 47 N. Y. St. R. 287, 20 N. Y. S. 310. 316. Stepchildren. By the amendment of section 221 of the Tax Law by chapter 368, Laws of 1905, bequests to stepchildren who had lived in the same family with deceased for over ten years, which relationship began before the fifteenth birthday of such children, and who had been cared for and treated as her own children, are taxable at the rate of 5 per cent., as their father sill survived, and the statute as amended provides for a less rate in such cases only where "the parents of such child shall be deceased when such relationship commenced." Matter of Stebbins, 52 Misc. Rep. 438; Matter of Wheeler, 115 App. Div. 614; Matter of Harder, 124 App. Div. 77, 108 N. Y. S. 154. This amendment evidently was not intended to apply |