123 N.Y.S. 574 | N.Y. Sur. Ct. | 1910
This is an appeal from an order made in the above-entitled matter upon the report of Hon. Robert Averill,. appraiser, which order was entered on D'ecember 4, 1909. It is claimed by the appellant that the property of the decedent
- It has been held “ that each tenant in common is not only-vested with the title to his undivided interest in the common- estate, but each holds a contingent interest in the entire title until all equities relating to the tenancy are adjusted. Thus, if one
Accordingly, it appearing that such improvements were made to the property, and considering the relations of these parties, living where each presumably knew what the other was doing, and the one having no property with which to make such improvements, the other cotenants and their privies would be entitled upon a partition action to have such improvement made upon the property allowed to them before a division of the proceeds, and the Statute of Limitations would not be a defense to such allowance. Ford v. Knapp, 102 N. Y. 142; Jones v. Duerk, 25 App. Div. 551; Satterlee v. Kobbe, 173 N. Y. 91.
The State of blew York should tax only that which belonged "to the decedent at her death; and, if as between the parties there were equitable rights which would cut down the value of the real estate of the decedent, only the balance of such interest should be taxed. Notwithstanding' the fact that no proceeding has been commenced, and notwithstanding the fact that it might be claimed that no contribution would ever be asked, nevertheless that does not justify the taxation, of property that the decedent did not own and which does not pass to the heirs at law as her property; for from the authorities above cited I am of the opinion that the cotenants could require contribution, and, if they did not, that would be a matter of graciousness on their part and would not increase the value of the estate of the decedent passing upon her deáth subject to the Transfer Tax Law.
I accordingly reduce the amount of the value of the property of the decedent, as fixed by the order herein on the report of
The appeal is also for the reimbursement of payments made for taxes by Mr. Kavaney. I disallow this, on the ground that these taxes paid by him were payments made by a person not a party to the title, in other words, not a cotenant, and that -any payments made by him are rather in the character of a loan than of a payment which entitled him to a lien on the land. .1 accordingly disallow the appeal on that item.
Let an order be entered herein amending the order appealed ■from in accordance with this decision, without costs to either yarty as against the other.
Ordered accordingly.