178 A.D. 450 | N.Y. App. Div. | 1917
The testator died on the 23d of February, 1916, leaving by a last will and testament his entire estate, with the exception of some articles of jewelry, to his wife and naming her his executrix. He and his wife owned realty as tenants by the entirety but the appeal relates only to the personalty. The question presented for decision relates to whether certain of the personal property was owned by the testator and his wife as tenants in common or jointly and to what extent, if any, it is taxable.
The only evidence with respect to such ownership is contained in a schedule annexed to the affidavit of the executrix made in this proceeding for the determination of the tax to be paid, and the affidavit of one of her attorneys with respect to a certain mortgage omitted from the schedule. The property in question consists of a bank account and mortgages. It is stated generally in the schedule that jointly with his wife and subject to check by either of them he had a deposit account with the Broadway Trust Company of a specified amount upon which a specified amount of interest had accrued to the date of his death; that the money was partly the income derived from the rents of real estate owned by them as tenants by the entirety and partly the income of mortgages “ held by them jointly and to the survivor of them;” that all deposits made in the account were used by
The appeal presents the question as to whether the bank account and the mortgages were taxable, and if so to what extent, under the provisions of subdivision 7 of section 220 of the Tax Law (Consol. Laws, chap. 60, Laws of 1909, chap. 62), as added by chapter 664 of the Laws of 1915, which took effect on the twentieth day of May, that year. The provisions of that subdivision are as follows: “ Whenever intangible property is held in the joint names of two or more persons, or as tenants by the entirety, or is deposited in banks or other institutions or depositaries in the joint names of two or more persons and payable to either or the survivor, upon the death of one of such persons the right of the surviving tenant by the entirety, joint tenant or joint tenants, person or persons, to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the whole property to which such transfer relates belonged absolutely to the deceased tenant by the entirety,
It follows that the order should be reversed, with ten dollars costs and disbursements, and the order of the tax appraiser modified by imposing a tax to the extent of one-half the value of the interest taxed as reported by him, and as so modified, affirmed.
Clarke, P. J., Scott, Davis and Shearn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and order of tax appraiser modified as stated in opinion, and as modified affirmed. Order to be settled on notice.