Matter of Spring

Full title: In the Matter of the Appraisal, Under the Transfer Tax Acts, of the…

Court: Surrogate's Court of the City of New York, Kings County

Date published: Feb 1, 1912

75 Misc. 586 (N.Y. Surr. Ct. 1912)

136 N.Y.S. 174

Opinion

February, 1912.

Lyon Smith (Edward P. Lyon, of counsel,) for executrix.

Harry Howard Dale, for State Comptroller.

KETCHAM, S.

The executrix appeals from the order imposing a transfer tax upon the transfer of a half interest in ten mortgages, which will be described.

These mortgages were assigned to the decedent and her daughter, by instruments which contained provisions, in some instances, that the survivor of the two assignees should become the absolute owner of the bond and mortgage and that neither should have the power to affect the rights of the last survivor, and, in other instances, that the securities assigned would be held by the parties of the second part and the survivor of them.

The executrix claims that the transfer to these two persons jointly, with right of survivorship, vested the title in the survivor and that, on the death of one, the title of the survivor related back to the date of the original transfer.

It is of no importance to consider whether or not these transfers bestowed title or ownership at the time when the mortgages were assigned.

If the claim of the executrix in this respect were conceded the transfers would, nevertheless, be taxable under the expressions of the statute.

It is apparent that the decedent, under the several assignments, received a right, at least equal to that of her associate assignee, to collect interest upon the mortgages. While it does not affirmatively appear, the presumption must be that each of the assignees reserved the right to interest on one-half of the investment. Hence, as to the one-half of the securities involved in this discussion, the decedent held an interest which can be likened to an intermediate estate for her own life; and the daughter (the other assignee) took a remainder which, under the language of the Tax Law, was a transfer "intended to take effect in possession or enjoyment" upon the death of the decedent. Matter of Green, 153 N.Y. 223; Matter of Brandreth, 169 id. 437; Matter of Cornell, 170 id. 423; Matter of Keeney, 194 id. 281.

Order appealed from affirmed.