In re the Estate of Heiser

Flower, S. This appeal is taken by the state comptroller from an order assessing a tax upon the estate of the decedent. The appraiser reported that real estate of the value of $45,800 and personal property consisting of bonds and mortgages of the value of $156,166.69 were held by the decedent and her sister, Maria S. Heiser, as joint tenants, and that the decedents interest in the property was exempt from taxation. The state comptroller contends that the decedents interest in this property passed to the executrix, who was her joint tenant, as a gift intended to take effect at or after death and that it is therefore subject to a transfer tax. The decedent and her sister, Maria S. Heiser, were originally tenants in. [18] common of the real estate. They conveyed it to a third person, and in the deed by which it was reconveyed to them it was expressly declared that the conveyance was made to them as joint tenants and not as tenants in common. The bonds and mortgages were originally held by the decedent and her sister,, Maria S. Heiser, as tenants in common, but by separate instruments they were assigned to a third person, and then assigned and transferred by such third person to the decedent and her sister as joint tenants. Joint ownership of personal property is recognized by the law of this state. Matter of Kaupper, 141 App. Div. 54; Kelly v. Beers, 194 N. Y. 49. The right of the survivor to the entire property held by them as joint tenants is the distinguishing characteristic of this species of ownership, and if all the property held jointly belonged originally to one of the parties and the rights of a joint owner were conferred by the original owner upon his joint tenant as a gift intended to take effect at or after death, the value of the interest passing to the survivor would be subject to the provisions of the Transfer Tax Law. But if the joint tenants have contributed out of their individual funds to the purchase of the property held by them as joint tenants, the right of the survivor to take the entire property is not a gift from the other joint tenant, but a right derived from the contract entered into between them at the time the instrument creating the joint tenacy was executed. A contract by which each of two persons holding property as tenants in common transfers his interest therein to the other if he survives is supported by a good consideration and is not subject to revocation. Augsbury v. Shurtliff, 180 N. Y. 147. When the decedent and her sister as tenants in common of the bonds and mortgages mentioned in the appraiser’s report agreed with each other to transform the nature of their tenancy in the property from tenants in common to joint tenants, each of them surrendered rights over the property in consideration of the right of survivorship conferred by [19] the instrument creating the joint tenancy. Instead of each owning an undivided one-half of the property, subject to sale, assignment or to transfer by will, each took under the instrument creating the joint tenancy an undivided half which was not subject to sale, assignment or to transfer by will. Each, therefore, parted with a valuable consideration for the right to take the entire property as survivor. In the testimony given before the appraiser by Maria S, Reiser, the surviving joint tenant, she testified that the execution of the instrument, by virtue of which they held the property as joint tenants, was 156 for the purpose of facilitating the administration of the estate when one should die, so that the survivor would take was left as a gift." As there is no ambiguity in the instrument creating the joint tenancy this testimony as to its effect was incompetent. In the absence of an allegation of fraud it, is immaterial what purpose the parties to the instrument may have intended to accomplish by its execution, because the instrument itself expressly declares that the assignment of the bonds and mortgages was made to them as joint tenants. The right of the survivor to take the entire property may accord with the witness9 conception of a gift, but it was not a gift within the legal signification of that word. It was not a gift inter vivos because there was no delivery by the donor of the thing constituting the gift, coupled with an intention to transfer the immediate right of ownership in and dominion over the property to the donee. Matter of Bolin, 186 N. Y. 177; Beaver v. Beaver, 117 id. 421. It was not a gift causa, mortis? because real property cannot be the subject of such a gift, and it does not appear that either of the parties to the instrument creating the joint tenancy was in extremis or dangerously ill or in immediate peril of losing her life. Neither was it a gift made in contemplation of death within the meaning of that phrase in the transfer tax statute, because it was made for a valuable consideration and was contingent in each case upon either one [20] of the joint tenants surviving the other. It was also suggested before the transfer tax appraiser that the joint tenancy was created for the purpose of avoiding taxation under the Transfer Tax Law. It was immaterial for what purpose the joint tenancy was created, as property may be transferred by gift inter vivos or for a valuable consideration and not be subject to the provisions of the Transfer Tax Law. It is only when it is transferred in the particular manner prescribed by the transfer tax statute that it is subject to the tax. A transfer effected in any other form, irrespective of the motive which prompted it, is not subject to the tax. As the transfer tax statute does not impose a tax upon a transfer of property which is made for a valuable consideration, and as it appears that the transfer oí the interest of the decedent in the bonds and mortgages as' well as the real estate above mentioned was for a valuable consideration, the interest accruing to the survivor upon the death of the decedent is not subject to the provisions of the Transfer Tax Law. The order fixing tax will therefore be affirmed. Order affirmed.