In re Appraisal under Transfer Tax Law of Estate of Dunn

Dowling, J.: Patrick J. Dunn died on March 20, 1921, in the borough and county of Bronx, city of New York, leaving him surviving his widow, Lena Dunn. He and his wife owned, as tenants by the entirety, the premises 1326 Fulton avenue (acquired March 4, 1915), 1330 Fulton avenue (acquired February 7, 1919), and 2526 Grand Concourse (acquired February 11, 1920), all in Bronx county. Title to each of said parcels of property was taken in the names of Patrick J. Dunn and Lena Dunn, his wife. It is conceded that as a result of their tenancy by the entirety, upon the death of Patrick J. Dunn, his widow, Lena Dunn, took title to the real property in question by right of survivorship. The question involved in this appeal is whether the.petitioner is entitled to a deduction, in fixing the transfer tax upon the estate of the decedent, of the amount of the widow’s dower right in the premises 1330 Fulton avenue and 2526 Grand Concourse which were bought in the names of Patrick J. Dunn and Lena Dunn, his wife, after the passage of the amendment to the Tax Law hereinafter referred to. There is ho tax due upon the estate created prior to 1916. (Matter of Lyon, 233 N. Y. 208.) The answer "to this question depends upon the interpretation to be given to subdivision 7 of section 220 of the Tax Law, as amended by section 83 of chapter 323 of the Laws of 1916 and section 1 of chapter 626 of the Laws of 1919. In its present form and as existent since the amendment of 1916' the subdivision reads as follows:' “ Whenever property is held in the joint names of two or more persons, or as tenants by the entirety, or is deposited in banks or other institutions or depositaries in the joint names of two or more persons and payable to either or the survivor, upon the death of one of such persons the right of the surviving tenant, by the entirety, joint tenant or joint tenants, person or persons, to the immediate ownership or possession and enjoyment of such.property, shall be deemed a [409] transfer taxable under the provisions, of this chapter in the same manner as though the whole property to which such transfer relates belonged absolutely to the, deceased tenant, by the entirety, joint tenant or joint depositor and had been bequeathed to the surviving tenant by the, entirety, joint tenant or, joint tenants, person or persons, by such deceased tenant by the entirety, joint tenant or joint depositor by will.” This subdivision was added to section 220 of the Tax Law by section 1 of chapter 664 of the Laws of 1915, the word “ intangible ” appearing in the first line before the word “ property.” This was stricken out by the amendment of 1916, and that amendment as re-enacted in 1919 was in force xhen the decedent died. The nature of an estate by the entirety is well known to the law. A husband and wife, when jointly seized of land, are seized by entireties per tout et non per my, and not per my et per tout as joint tenants are. Upon the vesting of an estate by the entirety, both tenants become seized of the whole estate, and upon the death of one the survivor acquires no new or additional" interest by survivorship. (Matter of Klatzl, 216 N. Y. 83; Matter of McKelway, 221 id. 15.) The nature of this tenancy precludes the idea of any dower existing therein, for where the wife survives, she takes the whole. In addition to this,; by section 190; of the Real Property Law, the widow is entitled to dower only in the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, and does not apply to an interest extinguished by his death. . We have, therefore, a case where the exact terms of the statute are met. Property was held by husband and "wife as tenants by the entirety; upon the death of the husband, the wife, as surviving tenant by the entirety, became entitled to the immediate ownership, possession and enjoyment of the entire property. ' The statute provides that in such, case the right of the survivor shall be deemed a taxable transfer in the same manner as though the whole property belonged absolutely to-the deceased tenant by the entirety and had been bequeathed by him to the surviying tenant by will. The tax is to be imposed upon the entire estate as if the whole had passed by will. (Matter of Lyon, supra; Matter of Dolbeer, 226 N. Y. 623.) . If the Legislature had expressly imposed a tax upon the value of the estate by the entirety as such, thus passing to the survivor, there could be no doubt that the widow would not be entitled to dower, for, as has been said, dower has no place in an estate by the entirety. ■ But it did not do so. It provided for a tax upon a transfer [410] under such conditions, as though the whole property belonged absolutely to the deceased tenant and had been bequeathed by will to the survivor. If Patrick J. Dunn had owned this property absolutely and had devised it by will to his widow, there can be no question that she would have been entitled to a deduction of the value of her dower right therein before the tax on transfer could have been imposed. Anomalous as this result seems to be in view of the nature of tenancy by the entirety, it seems to me to be the necessary effect of the language employed in the statute. And this could not have been the result of chance or inadvertence, for the estate by the entirety is necessarily one existing between husband and wife, and in every case where the wife survives, the question of her dower is necessarily involved. Had the Legislature intended to impose the full tax upon the transfer of such property to the survivor, irrespective of any right of dower, it could easily have used appropriate language so to provide. And it must be deemed to have intended what the law said, particularly as it was entering a new field of taxation, and taxing for the first time a transfer to the survivor of an estate by the entirety. I am of the opinion, therefore, that the order appealed from should be affirmed, without costs. Smith and McAvoy, JJ., concur; Clarke, P. J., and Page, J., dissent.-