In re the Property of Wood

Brown, S. This is an appeal from an order made in the above-entitled matter upon the report of Hon. Robert Averill,. appraiser, which order was entered on D'ecember 4, 1909. It is claimed by the appellant that the property of the decedent [543] is assessed too high. It appears that the estate of the decedent, consisted solely of her interest in real estate which she inherited with her brother and sister from their mother. Alter the mother’s death the property was improved by the erection of buildings by the cotenants. The decedent had no funds and was unable to join in furnishing money for the building. The appraiser allowed $4,000 for money advanced by one of thecotenants to help build a building, Ros. 114, 116 Scio street, which building was a part of the common property, but the decedent had paid nothing or put up nothing to offset said $4,000 furnished by the cotenant for the building thereof. I think this action on the part of the appraiser was correct, but the objection of the appellant is that he did not allow $8,098.80" more, which some thirty years ago was paid by a cotenant of Mrs. Wood, the ancestor of the cotenants of the decedent, at the time of her death. It appears in evidence that such $8, 098.80 was expended for new buildings on the premises owned in common by the decedent and her cotenants; that said $8,-098.80 was not offset by any similar or other contribution on behalf of the decedent in the building of such building; that the families lived in common and had no accounting between one another. I assume that the reason why the appraiser did not allow this $8,098.80 is that the claim was so old that he assumed that the Statute of Limitations applied and he had no authority to allow it. If this was his reason, he was in error, for the Statute of Limitations does not apply to partition actions and accountings in partition actions, so long as the relation of cotenancy exists. It is subject, during its existence, to equitable accounting during its entire continuance. 21 Am-&i Eng. Ency. of Law (3d ed.), 1114, subd. b, note 4. - It has been held “ that each tenant in common is not only-vested with the title to his undivided interest in the common- estate, but each holds a contingent interest in the entire title until all equities relating to the tenancy are adjusted. Thus, if one [544] tenant has made necessary and lasting improvements on the common estate, or has paid the taxes legally assessed against it, he will hold the title of his cotenants until he is reimbursed; or, if the property has- passed by descent and one of the heirs has received advancements, he must account for the advancements, and the other heirs will hold his title until their respective interests can be equalized in a partition proceeding.” Accordingly, it appearing that such improvements were made to the property, and considering the relations of these parties, living where each presumably knew what the other was doing, and the one having no property with which to make such improvements, the other cotenants and their privies would be entitled upon a partition action to have such improvement made upon the property allowed to them before a division of the proceeds, and the Statute of Limitations would not be a defense to such allowance. Ford v. Knapp, 102 N. Y. 142; Jones v. Duerk, 25 App. Div. 551; Satterlee v. Kobbe, 173 N. Y. 91. The State of blew York should tax only that which belonged "to the decedent at her death; and, if as between the parties there were equitable rights which would cut down the value of the real estate of the decedent, only the balance of such interest should be taxed. Notwithstanding' the fact that no proceeding has been commenced, and notwithstanding the fact that it might be claimed that no contribution would ever be asked, nevertheless that does not justify the taxation, of property that the decedent did not own and which does not pass to the heirs at law as her property; for from the authorities above cited I am of the opinion that the cotenants could require contribution, and, if they did not, that would be a matter of graciousness on their part and would not increase the value of the estate of the decedent passing upon her deáth subject to the Transfer Tax Law. I accordingly reduce the amount of the value of the property of the decedent, as fixed by the order herein on the report of [545] "the appraiser, by the sum of $8,098.80, being the amount of .advancements made by cotenants in the building or buildings upon the common property, not allowed by the appraiser. The appeal is also for the reimbursement of payments made for taxes by Mr. Kavaney. I disallow this, on the ground that these taxes paid by him were payments made by a person not a party to the title, in other words, not a cotenant, and that -any payments made by him are rather in the character of a loan than of a payment which entitled him to a lien on the land. .1 accordingly disallow the appeal on that item. Let an order be entered herein amending the order appealed ■from in accordance with this decision, without costs to either yarty as against the other. Ordered accordingly.