§ 220

Antenuptial Agreement.

visions of the will in lieu of her dower, and contention was made that the legacy of $10,000 was not taxable, as it was in effect an obligation or debt on the part of the estate as the consideration for the release of the dower right of the widow, which was not taxable. The court held the legacy of $10,000 taxable, saying: "If the construction of the appellants was correct, a dower right which is an interest in real estate not subject to a tax, or to the testator's disposition, could be discharged of the personal property and thus the State would lose the benefit of the tax. If such a proposition were sound, it would be an easy way for testators to obviate the taxes upon gifts of personal property to their wives by simply making the gift as a consideration for a release of dower in the real estate." Matter of DeGraaf, 24 Misc. Rep. 147, 53 N. Y. S. 591.

108. Antenuptial Agreement.

Under subdivision 3 of section 21 of the Personal Property Law, as amended by chapter 417 of the Laws of 1897, an antenuptial agreement to give a future wife a portion of a savings bank deposit, in consideration of marriage, is void if not in writing. Schneider v. Schneider, 122 App. Div. 774. (See subdivision 3, of section 31, article 3, chapter 41, of the Consolidated Laws, being chapter 45, Laws of 1909.)

In the Matter of Sheldon, N. Y. Law Journal, June 25, 1904, the testator made an antenuptial agreement, which was accepted by his intended wife, whereby he transferred all his property to certain trustees, directing the income to be paid to himself for life and upon his death to his widow, the remainder to pass upon the

Id.; Agreement to Convey by Will.

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death of his wife to their issue; failing issue, part of the income only was to be paid to the wife and the remaining income to collateral relatives, and upon the death of the wife the whole principal was to be paid to the collateral relatives. The testator left him surviving his wife, but no issue. Surrogate Thomas held that the provisions in favor of decedent's collateral relatives, contained in the deed of trust executed by him, effected purely voluntary transfers to persons not furnishing any part of the consideration and not in privity with the person who did furnish the consideration; that these transfers were intended to take effect in possession or enjoyment at or after the death of the transferrer and are taxable.

110. Id.; Agreement to Convey by Will-Is a Taxable Transfer.

Where it has been adjudicated by the Supreme Court in an action brought by the stepdaughter of a testator, against his executors and trustees and the beneficiaries named in his will, that she was entitled to all the real and personal property of testator under an antenuptial agreement between him and her mother, whereby he agreed to devise and bequeath all his property to such stepdaughter if no children should be born of his marriage with her mother, and the judgment directed the defendants to execute and deliver to the plaintiff all necessary releases and conveyances of such property, the property passing to testator's stepdaughter under such judgment is not exempt from taxation under the Transfer Tax Law, since the contract enforced by such judgment, and under which testator's stepdaughter receives the property, was not a contract to convey the property, but a contract to make a

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Id.; Necessary Party.

will in her favor, and even if the testator had performed his agreement and given her his property by his will, the estate would have been subject to tax.

The fact that testator's stepdaughter, in consequence of the failure of testator to carry out his agreement, was obliged to resort to the courts for relief, does not affect the question of the liability of the estate to the transfer tax; the judgment did not set aside the will, but enforced the antenuptial contract and converted the devisees under the will, or the heirs at law or next of kin of the testator, as the case may require, into trustees for the beneficiary under the agreement, so that the devolution of testator's property has, in fact, taken place under the will, and is subject to the transfer tax. Matter of Kidd, 188 N. Y. 274.

111. State Comptroller Not a Necessary Party to Action to Enforce Antenuptial Agreement.

The Comptroller is not a necessary party to an action by a claimant against an estate for the specific performance of an antenuptial agreement made by the testator. Matter of Kidd, 115 App. Div. 205; decision reversed on other grounds Matter of Kidd, 188 N. Y. 274.

Reference to other taxable transfers, including the property of nonresidents, see Chapters V, VI, and VII.

CHAPTER IV.

TAXABLE TRANSFERS- $ 220, TAX LAW

INTERESTS NOT TAXABLE.

Reference to other nontaxable transfers, including the property of Bonresident decedents, see Chapters V, VI, and VII.

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Accrued Rights

Increase.

112. Accrued Rights- Prior to Transfer Tax Law.

Rights" accruing "under a trust deed executed prior to the enactment of the Transfer Tax Law, whether such rights are vested or contingent, are not taxable. Matter of Craig, 97 App. Div. 289, 89 N. Y. S. 971; affd., 181 N. Y. Mem. 49.

113. Estates Vested Prior to the Transfer Tax Law.

Interests in estates which became vested before the passage of the Transfer Tax Law are not taxable under said act. Matter of Travis, 19 Misc. Rep. 393, 44 N. Y. S. 349; Matter of Pell, 171 N. Y. 48.

114. Increase Accruing after Decedent's Death.

Only the property of which a person dies seized or possessed is taxable, therefore the increase or interest accruing thereon subsequent to decedent's death is not taxable. Matter of Vassar, 127 N. Y. 1.

115. Bequest for Burial Plot.

A bequest for purchase of or maintenance of the decedent's burial lot has been held exempt as a part of the funeral expenses of the decedent. Matter of Vinot, 7 N. Y. S. 517; Matter of Edgerton, 35 App. Div. 125, 54 N. Y. S. 700; affd., 158 N. Y. 671.

116. Interest or Share of a Decedent in an Undistributed Estate.

Where the personal estate of a decedent consisted only of her distributive share in the estate of a deceased sister, no part of which came into the hands of the testatrix before her death, held, that such portion of the decedent's estate was not taxable. Matter of