In re Majot's Estate

HOUGHTON, J. The decedent was a citizen of France, and married the respondent in that country, and they migrated to the United States, and he died a resident of the state of New York, intestate, owning real property therein and .possessed of certain personal property. The marriage in France was without express antenuptial contract; but by the Civil Code of France a marriage without express contract gives a community of interest in the property owned by either party to the marriage at the time of its celebration, as well as any property subsequently acquired by either or both. The respondent claims that by virtue of her marriage with the deceased in France, under the law. giving her community of interest in whatever property her husband had or should acquire, she is entitled to one-half of his [889] real .and personal property free from the transfer tax imposed by the laws of the state of New York, and the learned surrogate has so held. We think such a contention cannot be upheld. The decedent, when he became a citizen and resident of the state of New York, submitted himself and his property to its laws, and especially to its laws respecting taxation. The transfer tax law (Consol. Laws, c. 60, § 220), imposing a tax upon the transfer of any property by will or intestate law of the state, or in contemplation of death, is a part of the state system of taxation for the raising of revenue for state purposes. Without doubt there are within the state of New York men who married' their wives in every civilized and semicivilized country of the world, and afterwards migrated to this country, and have already or will accumulate property within this state. In those countries in which they, were married various and peculiar laws governing marital rights and' community of interest in property no doubt exist. Whatever may be-the ethics with respect to comity between nations, or the opinion of learned writers on the subject, it is apparent that this state cannot recognize, in the exemption of property from taxation through transfer by death, all of these various laws of the several countries from which its residents originally may have come. It must be held, for our own preservation and the upholding of our own system of taxation, in the absence of an express antenuptial contract, at least, that the various common or statutory laws of the several countries, giving community or other interest to husband and wife, do not constitute a contract capable of nulifying the laws of the state in respect to the taxation of the transfer of property on death. There is very grave doubt whether the law of France with respect to community of interest on marriage does more than create a status between the parties so long as they remain in France and with respect to property in France. When a citizen of France voluntarily removes to another country and becomes a resident thereof, he loses that status, and does not take with him a partnership contract, enforceable contrary to the law of the country which he adopts. The learned surrogate placed his decision upon the authority of Bonati v. Welsch, 24 N. Y. 157. In that case a Frenchman sold real property belonging to his wife with her consent, and retained the proceeds. By the law of France he had the right, with her consent, to sell her property and to retain possession of the proceeds; but, in case he had not repaid her before death, she had a claim, which was declared to be a preferred one against his estate, for reimbursement. This claim was recognized by our courts, and allowed. Stress is laid, however, in the opinion, upon the fact that the deceased became possessed of the money in France and brought it away with him, and that the wife always remained in France, where the husband abandoned her. This decision comes- far short of holding that the law of community of interest read into the- marriage contract in France applies to property acquired outside of France, after the parties have ceased to be residents and citizens, and against the express tax law of their adopted residence. Had there been an express antenuptial contract, our courts would no doubt recognize it, as was done in Decouche v. Savatier, 3 Johns. Ch. 190, 8 Am. Dec. 478, and property passing by [890] virtue of such express agreement would be in satisfaction of a debt or obligation, and would not be taxable, because it would, not be transferred in the manner specified by the transfer tax law. Matter of Baker, 83 App. Div. 530, 82 N. Y. Supp. 390, affirmed on opinion " below 178 N. Y. 575, 70 N. E. 1094. Our conclusion is that the one-half of the property of the decedent is not exempt from taxation; and that the order of the surrogate so adjudging was erroneous, and must be reversed, and the order made upon the appraisal affirmed, with costs to the appellant. INGRAHAM and EAUGHLIN, JJ., concur.