135 A.D. 409 | N.Y. App. Div. | 1909
Lead Opinion
The decedent was a citizen of France and married the respondent in that country, and they migrated * to the Hnited States,
The respondent claims that by virtue of her marriage with the deceased in France, under the law giving her community of interest . in whatever property her husband had or should acquire, she is entitled'to one-half of his real and personal property free from the transfer tax imposed’by the laws1 of the State of Yew York-and the learned surrogate lias so held. We. think such a contention cannot be upheld. The decedent when lie became a citizen and resident of the State of Yew York submitted himself and his property to its laws, and especially to its laws respecting taxation.' The Transfer Tax Law imposing a tax upon the transfer of any property by will or intestate law of the State, or in contemplation of death, is a part ' of the State system of taxation for the raising of revenue for State purposes. Without doubt there áre-within the. State of Yew York men who married their wives in every; civilized and semi:civilized country of the world and afterwards migrated to this country, and have already or will accumulate property within this State. In those. countries in-which they were married various and peculiar" laws governing marital rights and' community of interest i-ii property no ' doubt exist. Whatever may ' be- the ethics with respect to comity; . between nations, ór the opinion of learned writers on the subject, it is apparent that this State - cannot recognize, in the exemption of property from taxation through transfer by death all of these various laws of the several countries from which its residents originally may have come. It must be held for our own preservation and the upholding of our own system of taxation, in the absence of an ■ express antemuptial contract at least, that the various common or' statutory laws of the several countries giving community or other interest to husband and wife, do not constitute á contract capable of nullifying.the laws.of the State in respect to the-taxation of the transfer of property on> death. There is very grave doubt whether
The learned surrogate placed his decision upon the authority of Bonat v. Welsoh (24 N. Y. 157). In that case a Frenchman sold real property belonging to his wife with her consent, and retained the proceeds. By the law of France he had the right, with her consent, to sell her property and to retain possession of the proceeds ; but in case he had not repaid her before death she had a claim which was declared to be a preferred one against his estate for reimbursement. This claim was recognized by our courts and allowed. Stress is laid, howevei’, in the opinion upon the fact, that the deceased became possessed of the money in France and brought it away with him, and that the wife always remained in France, where the husband abandoned her.
That decision- comes far short of holding that the law of community of interest read into the marriage contract in France applies to property acquired outside of France after the parties have ceased to be residents and citizens,. and against the express tax law of their adopted residence.
Had there been an express ante-nuptial contract our courts would no doubt recognize it as was done in Decouche v. Savetier (3 Johns. Ch. 190), and property passing by virtue of such express, agreement would be in satisfaction of a debt or obligation and would not be taxable because it would not be transferred in the manner specified by the Transfer Tax Law. (Matter of Baker, 83 App. Div. 530; affd. on opinion below, 178 N. Y. 575.)
Our conclusion is that the one-half of the property of the decedent is not exempt from taxation, and that the order of the surrogate so adjudging was erroneous and must be reversed, and the order made upon the appraisal affirmed, with costs to the appellant.
Ingraham and Lahghlin, JJ., concurred; Scott and Clarke, J J., dissented.
Dissenting Opinion
Paul A. E. Majot and his wife were married in France, in which country they were both then domiciled. At some time after their marriage they moved to and became .domiciled in this country, where Majot acquired certain real and personal property. He died intestate, leaving his widow and two children. Fie and his wife did not execute a written marriage contract. The widow claims that by virtue of the term imported into the marriage contract by the French law she is entitled as survivor to onfe-lialf of decedent’s property, and that her right to receive it depending upon her contract right and not upon a will of the decedent or the intestate laws of this State, tire property so received is not liable to taxation under the Transfer Tax • Law. (See Laws of 1896, chap. 908, § 220 ■et seq., as amd.) It seems to be conceded on all hands that this contention on the part of the widow would be entirely sound if the parties had entered into a written marriage contract providing for a community of goods. (Decouche v. Savetier, 3 Johns. Ch. 190; Bonati v. Welsch, 24 N. Y. 157; Matter of Baker, 83 App. Div. 530; affd. on opinion below, 178 N. Y. 575.) The parties having been married in France, then the country of their domicile, the terms of their contract of marriage, with the resulting rights and obligations, were determined by the lex loci,contractus. (Bonati v. Welsch, supra.) The.law of France prescribes that in default of a special agreement the law of community prevails. By the French Civil Code (§ 1400 et seq.) the community consists of any personal property either spouse owned indi vid ually before the marriage and all personal- and real property acquired dining coverture, with certain exceptions not important here. In case of death of one of the spouses the assets of the community, after all debts are paid, are to be divided equally between the estate of the decedent and .the survivor, who receives his or her half of the property in his or her own right as part owner thereof, and not in succession to the deceased. Bonati v. Welsch (supra) dealt with a marriage 'contracted under such circumstances, and held that a wife whose husband had deserted her and had come to America, leaving-her behind in France, was entitled to share in the community property by virtue of the contract made between the parties by operation, of the French law. The. Supreme Court of the United States had before it a case arising under the Civil Code of
ated and the real estate was held in the name of one of the parties, upon a dissolution of the partnership by his death it would hardly be claimed that the share or interest of the surviving .copartner passed to him by virtue of the intestate laws or was subject to a transfer tax: The analogy between that case and the
present seems to me to be complete. The .marriage contract between Majot and his wife respecting the ownership of the, community property was no different from any partnership contract between parties competent to contract. So long as it contravenes no law of this State, it should be recognized and respected.
In my'opinion the surrogate was right and his order should be affirmed. . .. ■
Clarke, J., concurred.
Order reverséd and order made upon appraisal affirmed, with '.costs to appellant. Settle order on notice.
