122 N.Y.S. 584 | N.Y. App. Div. | 1910
Lead Opinion
Is an estate by the curtesy taxable under chapter 368 of the Laws of 1905, and amendatory acts relating to taxable transfers ? Section ■220,
It is contended that curtesy initiate cannot exist, and that the husband has a mere status or possibility. Such was the decision in'" Collins v. Russell (96 App. Div.137) where, however, the court said thatfthe common law “ still governs tenancy by the curtesy,” and
I think that the surrogate (63 Misc. Rep. 156) stated correctly the principles, and that the decree should be affirmed.
Hirsohberg, P. J., Rich and Care, JJ., concurredWoodward, J., read for reversal.
See Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908), § 220, as amd. by Laws of 1905, chap. 368; since amd. by Laws of 1908, chap. 310, and revised into Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), § 220.— [Rep.
See Gen. Laws, chap. 46 (Laws of 1896, chap. 547), § 280.— [Rep.
Dissenting Opinion
Maria B. Starbuck died, a resident of Mount Vernon, Westchester county, on the 1st day of June, 1907- .On the 1st day of August, 1907, an order of the surrogate of Westchester county was made and- •. entered, appointing Michael J.- Walsh, Esq., appraiser'under the provisions of the Tax Law, as amended by chapter 368 of the Laws of-1905, relating to taxable transfers, and the amendments thereof and supplemental thereto. At the-time of her death Maria B.-Starbuck left surviving a husband, Gr. Ered Starbuck, and three infant sons as her heirs at law and next of kin. She died intestate, and letters of administration were issued to her husband-as administrator on the l'3thday of Juné, 1907. Included in the assets of the decedent’s estate was a one-third undivided interest in certain real estate at Mount Kisco, valued by the appraiser at $1,000, and a house and lot in Mount Vernon, appraised at $15,500. This latter property was subject to a mortgage, with- accrued interest, aggregating $4,428.57, leaving an equity, appraised at $11,071.43.. Decedent’s husband claimed' an, estate of curtesy in this real estate valued at $7,088,50; and that the value of such curtesy should be deducted from the net value-of such, real estate as an- exemption under the law. The appraiser,. declined to recognize this claim, and appraised the total value of the decedent’s estate, both real and personal at $19,503.39, fixing' the’ value of the husband’s curtesy at ( $7¿837,. upon winch lie allowed no exemption. On the 10th day of March, 1908, an order of the- surrogate was entered confirming said report of- the appraiser and assessing and affixing the tax in accordance therewith. Under this order the fair market value of the husband’s total interest *’ was assessed at $9,148.59, including the estate of curtesy, arid the-tax thereon was'fixed at $91:48. From this decree of the surrogate the administrator appealed, and on the 27th day of May, 1909, the surrogate made a decree allowing said appeal of the administrator' and ordering and adjudging “ that the value of the curtesy right, of GL Fred Starbuck, husband of said'Maria B. Starbuck, deceased, in and to her estate, amounting to Seven thousand eight hundred and • thirty-seven ($7,837) -Dollars be, and the’ same hereby is deducted from the sum total of the decedent’s personal and real estate.” By-the-same decree it was further provided that the balance Of the estate'being less than $10,000, .the estate was not-taxable, but- should
The single question presented upon this appeal .is whether the estate of curtesy which the husband takes in the undevised real property of which his wife died seized is taxable under the provisions of section 220 of the Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908), as amended by chapter 368 of the Laws of 1905 (since amd. by Laws of 1908, chap. 310, and revised into Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 220), relating to taxable transfers, which provides as follows: “ A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property, in the following cases: 1. When the transfer is by will or by the intestate laws of this State from any person dying seized or possessed of the property while a resident of the State.”
The learned surrogate in an opinion (63 Misc. Rep. 156) seems to hold that the decedent’s husband, upon the birth alive of their issue, became vested with what was known to the common law as curtesy initiate, and that his wife, never having exercised the power to dis-' pose of her estate, the fight became consummate at her death, and related back to the birth of issue capable of inheriting the estate, so that in fact he was vested with his title to the property prior to her death, and it did not come to him under the intestate laws of the State. I am of the opinion that this is an erroneous view of the law. Under the common law, prior to the enactment of the laws for the enlargement of the rights of married women in 1848 and 1849 (Laws of 1848, chap. 200; Laws of 1849, chap. 375) whenever the wife,, at or during the marriage, was seized of an estate of inheritance, and had issue by her husband, born alive, and she "died before the husband, lie had the right to her estate during life. During that time, that is, during the husband’s life, after the death of the wife, his estate was called an estate by the curtesy. (Bingh. Real Estate, 654, and authorities there cited.) Prior to the death
■ The decree appealed from should be reversed, and the decree affirming the. report of the appraiser assessing and fixing the tax upon the decedent’s estate should be affirmed.
Decree of the Surrogate’s' Court of Westchester county affirmed, With costs.' . . . ■
See Tax Law (Den. Laws, chap. 24;, Laws of 1896, chap. 908), §§ 220, 221, as respectively amd. by Laws of 1905, chap.. 368, and Laws of 1907, chap. 204; since amd. by Laws of 1908, chap. 310, and revised into Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap.'62),- §§ 220, 221.—[Rep. .. ' ' '