Opinion
May, 1902.
William T. Plumb, for State Comptroller.
Charles M. Williams, for widow.
Hiram R. Wood, for next of kin.
The agreement between Dora H. Johnston and Henry B. Baker made in contemplation of marriage between them was a contract founded upon an ample consideration for the promise of the deceased. Peck v. Vandemark, 99 N.Y. 29, 35. The agreement is not a grant conveying a present interest in property. Johnston v. Spicer, 107 N.Y. 185, 195. Nor is it testamentary in its character. A suit will lie upon its breach for damages. See cases above cited. Vogel v. Vogel, 22 Mo. 161. It is a debt within the meaning of the usual clause in a will directing the payment of debts, and the executor may pay it as such. Warner v. Warner, 18 Abb. N.C. 151.
It is not made in contemplation of death, but of marriage. That in this particular case one of the parties to the contract becomes entitled to its consideration upon the death of the other, and so "enters into the possession or enjoyment thereof," at or after such death, is but an incident of, and not of the essence of the contract. The time of payment of the consideration is fixed at death, but it would be equally valid if fixed at some other period or time, and in either case the consideration is none the less a debt payable from the estate of the deceased.
The contention that this is a transfer by sale, intended to take effect in possession or enjoyment at or after death, would apply equally to a note made payable after the death of the maker, yet such note is entirely valid and enforcible against the personal representatives of the deceased, for its face and interest. Hegeman v. Moon, 131 N.Y. 462.
Mrs. Baker is entitled to the payment of the consideration of that contract for the purposes of this proceeding, $10,000, with interest thereon from the date of Mr. Baker's death, and without diminution, for such is the obligation of that contract. But the Transfer Tax Law makes the transferee personally liable for such tax until its payment. § 222. I doubt if Mrs. Baker could be held to a personal obligation to pay such tax, because she is entitled under that contract to the full payment of its consideration.
For all these reasons it seems to me that the $10,000 of the consideration of said antenuptial agreement now payable from the estate of Henry B. Baker, is not subject to tax under the Transfer Tax Law of this State. A decree may be entered accordingly, but taxing the remainder of the estate going to the sister of Mr. Baker at one per cent., which would appear to be about $12,333.55.
Decreed accordingly.