In re Transfer Tax Upon the Estate of Cory

Scott, J.: This is an appeal by the State Comptroller from an order of one of the surrogates of New York county finally assessing the tax payable under the Transfer Tax Law upon the estate of the above named decedent. The question raised by the appeal has to do with the valuation to be placed upon five hundred shares of stock in the corporation of Chas. Cory & Son, Inc., which were owned by the testator at his death, and which were transferred by his executor to the appellant John M. Cory at an arbitrary valuation agreed upon by said decedent and said John M. Cory during the lifetime of the former. The aforesaid decedent and John M. Cory were brothers and until May, 1913, were equal partners in a business conducted under the firm name of Chas. Cory & Son, which had come to them from their father. In May, 1913, they organized a corporation under the same name with 1,000 shares of stock of which 500 shares were issued to each. — 873 — On September 12, 1913, they entered into a mutual agreement as follows: “Now, therefore, in consideration of One Dollar and other valuable considerations by each of the parties hereto in hand paid, the receipt whereof is hereby acknowledged, the parties hereto do agree, each with the other, that upon the death of either of the parties to this agreement, the other of said parties shall have the option to purchase from the executors of the one so dying, all shares of stock owned by the party to this agreement so dying at the time of his decease, in said corporation of Charles Cory & Son, Incorporated, at the price of Sixty Dollars per share, and the parties hereto respectively agree, each with the other, that upon the death of either of them’the survivor will purchase the stock of the one so dying from his executors and pay therefor, said price of Sixty Dollars per share. ” On the same day the brothers executed identical wills. Charles Cory died on November 25, 1914, leaving the will executed by him as aforesaid, and still owning the 500 shares of stock in the above mentioned corporation. He left two sisters and the above-mentioned brother John M. Cory. By paragraph 2 of his will he gave all of his property, after payment of debts and funeral expenses to his said sisters and brother “to be divided among them equally share and share alike.” As to his stock in the corporation of Chas. Cory & Son, Inc., he provided as follows: “ Third. I hereby reaffirm the agreement made between my brother John M. Cory and myself, to the sale to him by my executors of any and all shares of stock in the corporation of Charles Cory & Son, Incorporated, which I may own at the time of my decease and direct and instruct my executors hereinafter named to carry out the terms of said agreement. And I further direct my said executors to allow my said brother, credit on his share in my residuary estate for any and all moneys, which, under the terms of said agreement, shall be payable by him to my executors, to the extent of the amount of his share or interest in my said estate, and I authorize my said executors to accept and receive in lieu of such payment, a receipt or acquittance to them, as such executors, for so much of the said moneys as may be payable by him to them under said agreement, to the extent of the — 874 — moneys which he may be entitled to receive on the distribution of my said estate.” The shares were thereupon • transferred to John M. Cory at the price fixed by the aforesaid agreement of sixty dollars per share. The appraiser reported that the fair market value of said shares was $103,400, which valuation is not questioned on this appeal. The surrogate, however, on appeal, reduced the value to $30,000, the sum fixed by the aforesaid agreement. The shares appear to have been of substantially the same value when the aforesaid agreement was made and when the decedent died. The result of the surrogate’s decision is that property owned by the decedent at the time of his death and then worth over $100,000, and which after his death was transferred to his brother, has been taxed at a valuation of only $30,000. This is claimed by the respondent to be the necessary result of the ante-mortem contract made bebween the two brothers. Subdivision 4 of section 220 of the Transfer Tax Act imposes a tax upon the' “ transfer * * * by deed, grant, bargain, sale or gift * * * intended to take effect in possession or enjoyment at or after * * * death. ” (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], §220, subd. 4, as amd. by Laws of 1911, chap. 732.)* The transfer of the stock to John M. Cory falls exactly within the terms of the act. There was no present sale of the stock from Charles Cory to his brother, but merely a contract that after Charles Cory’s death John M. Cory might purchase the stock at an agreed price. We are of the opinion that the mutuality of obligation assumed by the brothers furnished a sufficient consideration for their mutual agreement, but, even so, the agreement constituted merely a mutual bargain for the sale of the stock after the death of whichever brother should first die, and under which the transfer of ownership could not take effect either in possession or enjoyment until after death. In fact, so long as Charles Cory lived he could at any time have sold or otherwise parted with the stock as he chose, without violating his agreement with his brother, — 875 — which in terms applied only to the stock owned by the .brother first dying “at the time of my decease.” Until one of the brothers died the contract remained wholly executory, and after death the only right given to the survivor was that he might buy the stock from the estate of the decedent, paying therefor $60 per share. The case thus presented is quite unlike Matter of Baker (83 App. Div. 530; affd., 178 N. Y. 575). In that case one Henry B. Baker being about to marry, entered into an ante-nuptial contract with his prospective wife whereby he agreed, in consideration of the contemplated marriage, to presently give her the sum of $1,000, and if the marriage were consummated and his wife outlived him that he would provide by will for the payment of $20,000 to her out of his estate. The wife on her part agreed to accept -this provision in lieu of her dower rights in her husband’s property. Baker died intestate leaving his widow and a sister, who was his next of kin and only heir at law, and by agreement between them the $20,000 was paid to the widow out of the estate. The question was whether this sum was taxable, and it was held that it was not because the agreement that the wife should be paid out of the estate created a debt payable out of the husband’s estate after his death. The difference between that case and the present seems to be obvious. There the husband received a present consideration on the making of the contract. So far as the wife was concerned it was fully executed. Bor this consideration the husband agreed that his wife should receive a sum of money out of his estate, payment being postponed until his death. It was precisely as if the husband for a present valuable consideration had given the wife a promissory note or a bond for $20,000 payable at his death. In the principal case the contract was purely executory on both sides. Ho consideration passed from one party to the other, except the mutual promises, and no debt was created from one party to the other. Logan v. Whitley (129 App. Div. 666), although not a transfer tax case, arose under a similar contract to that in the Baker case, and again it was held that the contract had been wholly executed by the wife, and that the sum which he had agreed to give her at his death constituted a debt against his estate. The Baker case and other similar cases were — 876 — clearly distinguished by the Court of Appeals in Matter of Kidd (188 N. Y. 274), a case much resembling in principle the present case. There it appeared that George W. Kidd being about to marry a widow, entered into an ante-nuptial contract with her whereby in consideration of the marriage, and the promise of his expectant wife to turn over to him the sum of $40,000, he agreed that he would adopt Grace G. Slocum, her daughter, give her his name and make her his heir, and, if there should be no issue of the marriage (as there was not) that he would devise and bequeath all of his property to said Grace G. Slocum. The mother fulfilled her part of the agreement, but Kidd failed to fulfill his part, leaving at his death a will whereby he disposed of his property otherwise than as he had agreed. Grace. G. Slocum (then named Dickinson) sued to establish Kidd’s contract for her benefit, and succeeded in obtaining a judgment that she was entitled to his whole estate. The question was whether the property thus recovered was subject to a transfer tax. It was held that it was. It was pointed out in the opinion that no present interest in the estate vested in Miss Slocum by virtue of Kidd’s agreement with her mother. All that Kidd agreed to do was to leave her whatever he might have when he died, but in the meantime, while he could not have conveyed away his property in fraud of her rights, he might have entirely consumed it in living expenses or have lost it in speculation. So in the present case John M. Cory acquired no title or right to possession to the stock during the lifetime of his brother Charles. All he acquired was the right to purchase at Charles’ death such stock as the latter might then own. In my opinion the will executed by Charles Cory is significant, and yet unless carefully considered is likely to be misleading. By the 2d paragraph of his will Charles Cory purported to divide his estate equally between his two sisters and his brother, but by the 3d paragraph he, in effect, created an inequality by providing that there should be transferred to the brother, at the arbitrary valuation of $30,000, stock of the true value of $103,400. The effect of this 3d paragraph was as if he had in terms directed that the stock which he held in Chas. Cory & Son, Inc., should, for the purpose of dis — 877 — tribution, be valued at $60 per share and should be delivered to his brother at that valuation as a part of his distributive share in the estate. This of course he had a perfect right to do so far as his legatees were concerned, ■ but the result would have been, and in fact was, so far as the State was concerned, that by the contract and will read together John M. Cory received in possession and enjoyment after his brother’s death stock worth upwards of $100,000. In other words, for the purpose of distribution, the testator might put any arbitrary value he chose upon the stock, but for the purpose of assessment for taxation under the Transfer Tax Law, the stock is to be appraised at its real value, and it is unimportant under the statute that the sale of the stock to John M. Cory at the arbitrary valuation was provided for by an ante-mortem bargain or contract, since the transfer by virtue of that contract was clearly “intended to take effect in possession or enjoyment at or after ” the brother’s death. To apply any other rule to a case like the present would open the door to unlimited devices to avoid the payment of transfer taxes. My conclusion is that the stock in question should be appraised for the purpose of the transfer tax at its fair market value at the time of the testator’s death. The order, in so far as appealed from, is, therefore, reversed, with ten dollars costs and disbursements to appellant payable out of the estate, and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion. Clarke, P. J., Laughlin and Smith, JJ., concurred; Page, J., dissented. Footnotes [*] Since amd. by Laws of 1915, chap. 664, and Laws of 1916, chap. 323.— [Rep.