#### Matter of the Supplementary Appraisal of the Estate of Burton S. Durfee, Deceased, under the Acts in Relation to the Taxable Transfers of Property.

(Surrogate’s Court, Wayne County,

March, 1913.)

Taxes — transfer tax — what estate is subject to transfer tax — savings bank accounts — Tax Law, § 220(4).

Upon the death of a testator who died in October, 1911, one-half of the balance due on joint deposits in bank in the name of himself and wife became transferable as a gift to the wife intended to take effect in possession or enjoyment at or before his death and is subject to a transfer tax under section 220 ( 4) of the Tax Law, as amended by Laws of 1911, chapter 732.

Where, three years before testator’s death, the heading of his savings bank account was changed by the addition of words which enabled his wife to draw the money, the full amount in said bank at his death is also subject to a transfer tax.

Appeal from the report of an appraiser in a proceeding for assessment of transfer tax.

Durfee & Lines, for executrix.

Frederick E. Converse, for state comptroller.

Knapp, S.

Burton S. Durfee died on or about the 2d day of October, 1911, in the town of Macedón, this county, leaving a last will and testament which was admitted to probate by the surrogate of this county on the '11th day of December, 0L911, and letters testamentary were issued to Elizabeth J. Durfee, the executrix named therein, on the 15th day of January, 1912. A petition was filed in the surrogate’s office, asking for the appointment of an appraiser under the acts in relation to the taxable transfers of property. Thereafter, and on the 22d day of April, 1912, a further petition was presented by the executrix, asking for the appointment of an appraiser, and for a supplementary appraisal, on the ground that certain property belonging to *656the estate had been inadvertently omitted upon the appraisal theretofore had. The supplementary report of the appraiser, who is the county treasurer of this county, shows that the decedent had a deposit in the Mechanics’ Savings Bank of Rochester, 1ST. Y., running as follows: *“*Mechanics’ Savings Bank to Burton S. Durfee, Dr.” The first entry is October 3, ¡1896, as of July 1, 1896. On December 1, 1898, the heading was changed by the addition of the words: “ Elizabeth J. Durfee may draw.” At the time of the death of the testator the balance in said bank amounted to the sum of $655.15.

The testator also had an account with the Rational Bank of Commerce of Rochester, headed *“*B. S. and E. J. Durfee, either survivor may draw.” There was a balance in said bank at the time of the death of the testator amounting to the sum of $1,087.77.

The testator also had an account in the Rochester Savings Bank headed, “ Elizabeth J. Durfee and Burton S. Durfee,” and there was at the time of the death of the testator a balance in this bank amounting to the sum of $1,178.18.

It appeared from the testimony taken before the appraiser that the money deposited in the Rational Bank of Commerce of Rochester, and in the Rochester Savings Bank, was money belonging partly to the decedent and partly to Elizabeth J. Durfee, and that one-half of each deposit belonged to the decedent, and onedialf belonged to Elizabeth J. Durfee.

The appraiser has appraised for the purposes of the transfer tax one-half of the balance in the Rational Bank of Commerce and in the Rochester Savings Bank, amounting to the sum of $1,132.98, and the full amount in the Mechanics’ Savings Bank, amounting to the sum of $665.15, amounting in all to the sum of $1,788.33. Erom the determination made thereon an appeal has been taken to me, and the question here for determination is, as to whether or not the joint deposits in the banks in the name of husband and wife are taxable upon the death of the husband.

The law relating to taxable transfers, as applicable to *657this estate, is found in chapter 62 of the Laws of 1909, entitled, *“*An Act in relation to taxable transfers, constituting chapter 60 of the Consolidated Laws,” as amended by chapter 706 of the Laws of 1910, as further amended by chapter 732 of the Laws of 1911.

This statute is not a general statute for the purposes of taxation, but is a special statute, relating to the taxable transfers of property left by decedents. The right to impose this tax must rest upon evidence sufficiently probative in force to bring it within the statute and must establish a case in which the law clearly realizes its imposition. Matter of Enstron, 113 N. Y. 174; Matter of Miller, 77 App. Div. 473; Matter of Thorn, 44 id. 8.

The rule is that a special tax will be construed strictly against the government and favorable to the taxpayer, and that a citizen cannot be subjected to the special burden without clear warrant of law. Matter of Miller, 77 App. Div. 473; Matter of Vassar, 127 N. Y. 1; People v. Union Bag & Paper Co., 63 Misc. Rep. 132; Matter of Fayer-weather, 143 N. Y. 114; Matter of Wolfe, 89 App. Div. 349; Matter of Stewart, 131 N. Y. 274; Matter of Swift, 137 id. 77; Matter of Harbeck, 161 id. 211.

The tax has been quite universally held to be one upon the transfer or succession, and not upon property or the estate of the deceased. Matter of Wolfe, 89 App. Div. 349; Matter of Hoffman, 143 N. Y. 327; Matter of Baker, 83 App. Div. 530; Matter of Dows, 167 N. Y. 227; Magoun v. Ill. Trust & Savings Bank, 170 U. S. 283; Matter of Cornell, 66 App. Div. 162; Matter of Rogers, 71 id. 461; Matter of Miller, 77 id. 473.

The words of the statute are to be used in their ordinary legal significance. Matter of Gould, 156 N. Y. 423.

It may be noted that a careful examination of the statute does not- show any express provision regarding the taxation of joint deposits in banks. The law has recognized for many years a tenancy by the entirety, as between husband and wife as to transfers of real estate held in their joint names as such and the right of survivorship exists to the survivor. The leading case upon that subject in this *658state is Bertles v. Nunan, 92 N. Y. 152, and the following cases sustain that proposition: Matter of Albrecht, 136 N. Y. 91; Brown v. Brown, 79 Hun, 44; Toole v. Board of Supervisors, 13 App. Div. 472; Hiles v. Fisher, 144 N. Y. 306; Zorntlein v. Bram, 100 id. 13.

The reason for this rule was that the common law rule provided that when land was conveyed to husband and wife they did not take as tenants in" common or as joint tenants, but each became seized of the entirety, and that upon the death of either the whole survived to the other, and that rule has not been changed by the acts enlarging the rights of married women.

While the law does not recognize tenants by the entirety in personal property (Matter of Albrecht, 136 N. Y. 91) it still does recognize a joint tenancy in personal property which may be created if the parties so intended, irrespective of whether the tenants be husband and wife, and in such a case the right of the survivor does exist. Matter of Kaupper, 141 App. Div. 54; West v. McCullough, 123 id. 846.

In the case of Augsbury v. Shurtliff, 180 N. Y. 138, Judge Vann, writing, says: “A contract by which each of two owners of a fund, as tenants in common, transfers his interest therein t'o the other if he survives him, is supported by a good consideration, and I see no reason why the intention of the parties should not be enforced by the courts. While such an agreement cannot be performed until after the death of one of the parties, it is complete and irrevocable, for neither can withdraw therefrom without the consent of the other. It is not testamentary in character, because it is founded on a valuable consideration and is not subject to revocation. It is as absolute as a deed, *‘*which is to take effect so as to pass the title at ’ the death of the grantor.”

It may be said in regard to the case above cited that the joint contract between the two parties interested in the bank account had been signed to be delivered to the bank, and the question at issue was as to whether or not this contract had been presented to the bank before the death of one *659of the parties. In the case at bar the evidence does not show how or under what circumstances the changing of the bank books in the bank was made, or by whose direction.

In the case of Kelly v. Beers, 194 N. Y. 49, Judge His-cock, in writing the opinion of the court in regard to the bank accounts standing in the name of the two survivors, says: “ It has been written, however, in various decisions that the mere form of the account in such a case as this will not be regarded as sufficiently establishing the intent of the person making it to- create a trust in behalf of another or to give to such another joint interest in or ownership of the deposit.”

In other words, that the mere fact of an account standing in the names of two parties, with the right to each to draw, does not, in and of itself, show such an intention to make a gift as will permit the survivor to take the fund without some proof as to the circumstances connected with the making of the deposits, or otherwise.

The same doctrine was held in the case of Matter of Bolin, 136 N. Y. 117. In that case the decedent had deposited a certain amount of money in a bank in her own name. Subsequently she redeposited this money in an account entitled, “Julia Cody, or daughter, Bridget Bolin.” Upon the death of Mrs. Cody the question arose as to whether Bridget Bolin was entitled to this fund by right of survivorship. Bridget Bolin was her daughter. Judge Gray, in writing the opinion of the court, says: “ There were no words of gift and the receipt and holding of the pass book were consistent with the mere custody, or agency. The law never presumes a gift. To constitute a valid gift there must have been the intent to give and a delivery of the thing. The evidence must show that the donor intended to divest herself of the possession of her property and it should be inconsistent with any other intention or purpose.”

A different rule seems to apply, however, as between husband and wife and a full examination of the authorities will be found in the opinion of Judge Miller in the case of West v. McCullough, 123 App. Div. 846, which case was affirmed in 194 N. Y. 518. See also McElroy v. National Savings *660Bank, 8 App. Div. 46; Moore v. Fingar, 131 id. 399; Sanford v. Sanford, 45 N. Y. 723; Matter of Meehan, 59 App. Div. 156; Borst v. Spelman, 4 N. Y. 284; Fowler v. Butterly, 78 id. 68; Matter of Eysel, 65 Misc. Rep. 432; Matter of Rapelje, 66 id. 414.

The evidence presented to the appraiser does not show a gift *causa mortis,*nor does it show a completed gift *inter*vivos, within the rule laid down in Beaver v. Beaver, 117 N. Y. 421.

Whatever this transaction may be called, whether it was an uncompleted gift in the nature of a trust or a joint tenancy, the fact still stands out that it was the evident intent and purpose of both the husband and his wife, and it appears by the testimony, that the accounts in these savings banks should be for the common use of both — he put his money in the accounts, and she put in hers. Either party could have destroyed the condition at any time by drawing out the whole fund or any part of it. It is also evident that it was the intention of this husband and wife that, upon the death of one, the survivor without legal formalities should come into immediate, absolute and sole possession of what remained. During their joint lives neither one had sole and absolute possession of these funds; they had the right to reduce to possession and that only. The possession was joint. The right to reduce was several. It was revocable. It became irrevocable at the death of one, and the right to reduce to possession in the lifetime of both resolved into the absolute and sole possession of the balance remaining at the death of one. Prior to the time of the death of either it might be subject to the rights of the creditors. Beakes Dairy *Co.*v. Berns, 128 App. Div. 137.

Having in mind the limitations upon the enforcement of this statute, which I have discussed, still it seems to me the plain meaning and import of subdivision 4 of section 220 of the law relating to taxable transfers, as amended by chapter 732. of the Laws of 1911, was intended to and does include exactly such a situation as is here presented. That subdivision reads as follows: “ When the transfer is of intangible property, or of tangible property within the state, *661made by a resident, or of tangible property within the state made by a non-resident, by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor or donor or intended to take effect in possession or enjoyment at or after such death.”

It seems to me that so much of these deposits as was the property of the decedent became transferable at his death as a gift to his wife intended to take effect in possession or enjoyment at or after his death. If I am right in that conclusion then the share to which the decedent was entitled of these moneys at his death was taxable.

The determination appealed from must be affirmed and an order to that effect may be entered,

Determination affirmed.