184 A. 210 | N.J. Super. Ct. App. Div. | 1936
Stephen B. Arrowsmith, dying in 1910 seized of a residence property in Red Bank, N.J., gave and devised all of his property, real and personal, to his wife, Sarah, for her life, with the right to consume principal, and with the further provision "And from and after the decease of my wife, I give, bequeath and devise all my said estate then remaining unto my beloved daughters, Eleanor Arrowsmith and Emma *144 A. Morris, * * * share and share alike, to them, their heirs and assigns forever."
The daughter Eleanor died in June, 1924, intestate, and leaving her sister Emma Morris and her mother, the life tenant, her sole nearest of kin.
The tax commissioner assessed a tax on the basis of a transfer (by intestate succession) of an interest in the residence property from Eleanor to Emma Morris. The present appeal challenges the validity of that tax. There is no issue as to value or computation; the contentions of appellant are, first, that no interest in the property passed from Eleanor to her sister by operation of the law as to intestate succession; second, that if any interest did so pass, the transfer thereof does not come within the category of transfers made taxable by the statute.
As to the first contention, appellant's argument is that either (1) the devise of the remainder, by the Stephen Arrowsmith will, was to the two daughters as a class, and vested in them as joint tenants, with the right of survivorship, and hence that the ownership by Emma of the "interest of Eleanor" resulted from a transfer by the will of Stephen and not by intestate succession from Eleanor; or (2) the devise, though to the two daughters as individuals, was nevertheless subject to divestiture as to the share of either (or both) by death prior to the death of life tenant, and that the death of Eleanor resulted in the divesting of her share or interest which thereupon passed by intestacy fromStephen to Stephen's heirs at law. No citation or any authority is made in support of this latter proposition; and it need be given no further consideration. Nor, under the law of this state, does the other proposition stand on any sounder basis.
It is entirely settled in New Jersey that a gift to persons who constitute a class, if made to them by name and with the further clause "in equal shares," is a gift in severalty and creates no joint tenancy, Post v. Herbert's Ex'rs,
In the instant case the Stephen Arrowsmith will gives the remainder interest to Eleanor in severalty, and with intent that it vest immediately, and without any substitutionary gift in the event of her predeceasing the life tenant. The words "their heirs and assigns forever," following the gift to the two daughters, import no substitutionary gift, but simply indicate the absolute quality or extent of the estate given. Kutschinski v.Bourginynon,
Appellant however contends that this transfer is not made taxable by the Transfer Inheritance act; that under the terms of the statute in force and effect at the death of Eleanor, — P.L.1909, c.
It is true that Eleanor was not seized of the residence property at the time of her death, — using that phrase in its strictest technical sense. — because she had neither possession nor the right to immediate possession; there being a life tenant who had the seisin. Heldhauser v. Schulz,
As commonly used in law however the word "seized" is not limited to the strict seisin of the owner of a freehold estate presently in possession; it denotes "title" or "ownership." This is evidenced, indeed, in the very case last cited, for the court in the course of the opinion holding that the wife of the remainderman was not entitled to dower because the remainderman was not seized of the property during the life of the life tenant, says that the remainderman "was never seized of anything more than an estate in remainder." So also in Cummings v.Cummings,
In the interpretation of statutes, and especially taxing statutes, words are to be construed in their common or popular sense rather than in a strictly technical sense, — unless there be something to indicate that the legislature intended the latter. Evening Journal Ass'n. v. State Board of Assessors,
That the legislature intended the word to be understood in its common or general sense of ownership, is clear from a consideration of the statute as a whole. The legislative purpose was obviously that of taxing broadly and generally all transfers (of the ownership of any and all interests in any and all property) occurring at death, and transfers made in lieu and stead of testamentary transfers. Section 26 of the act provides that the word "property" is to be construed to mean "theinterest" of the transferor in the property, — the interest which passes or is transferred; and further that the word "transfer" includes the passing "of any interest" in property. *147 Paraphrasing the wording of section 1, subsection first, inaccordance with these specific statutory directions, — the tax is imposed on "the transfer of any property * * * or of any interest therein, * * *. First, when the transfer or passing of any property or any interest therein is by will or by the intestate laws of this state from any person dying seized or possessed of the interest which such person has in the property." Obviously the word "seized" cannot possibly have the strict, narrow highly technical meaning for which appellant contends, — it cannot have any other meaning than "owning" or "entitled to."
The tax in question was computed and assessed, not on the basis or theory that Eleanor was seized of an undivided half interest in the property, but on the basis that she was "seized of," — was the owner of, — an undivided half of a remainder interest, subject to the life estate of her mother.
It was correctly computed and validly assessed, and will be affirmed. *148