Opinion
November, 1914.
Lawrence E. French (Clarence C. Fowler, of counsel), for Mary C. Thompson, executrix, appellant.
Edward F. Boyle (Ellwood M. Rabenold, of counsel), for state comptroller, respondent.
This appeal from the order entered upon the supplemental report of the appraiser brings up for consideration some of the questions decided by me upon the appeal taken by the executrix from the order entered upon the original report. Matter of Thompson, 85 Misc. 291. The supplemental report contains no new evidence which would warrant a modification of that decision. The new questions raised by this appeal relate to the right of the widow to have each transfer taxed separately and to have an exemption of $5,000 allowed from the value of the individual transfers. The bonds and mortgages which were taken in the names of decedent and his wife were executed at various times between 1905 and 1908, both years inclusive. Her right of survivorship in the bonds and mortgages was acquired immediately upon the execution of the instruments themselves. It was only the right to possession which was deferred until the death of the decedent. The transfer to her of this right of survivorship was taxable under the provisions of the Tax Law in force at the date of the respective transfers. Matter of Smith, 150 A.D. 805; Matter of Webber, 151 id. 539; Matter of Haight, 152 id. 228; Matter of Keeney, 194 N.Y. 281. The Tax Law in force at the various dates upon which these transfers were effected provided for the imposition of a tax upon a transfer of property to the wife of the transferror when the value of the property transferred exceeded $10,000, and the tax was to be imposed upon the entire value of the property transferred. Matter of Hoffman, 143 N.Y. 327; Matter of Corbett, 171 id. 516. Therefore the entire value of the bonds and mortgages transferred to the decedent's wife as a gift intended to take effect at or after his death constituted a transfer taxable under the provisions of the Tax Law as it existed prior to the amendment effected by chapter 706 of the Laws of 1910. This amount is taxable at one per cent, and should not be added to the value of the transfer effected by the will of the decedent or to the gift made by him to his wife in contemplation of death. The deed by which the decedent conveyed to his wife the real estate mentioned in the appraiser's report was executed and delivered on the 26th of January, 1911. This transfer, therefore, was subject to taxation under the provisions of chapter 706 of the Laws of 1910. The decedent's wife is entitled to have this gift taxed as an independent transfer and to have an exemption of $5,000 deducted from its value. Matter of Hodges, 86 Misc. 367. The order fixing tax will be modified in accordance with this decision.
Order modified.