tributive share was created, because, until a distribution has been made, nothing has been transferred. Matter of Phipps, 77 Hun, 325, 28 N. Y. S. 330; affd., 143 N. Y. 644; Matter of Zefita, 44 App. Div. 340, 60 N. Y. S. 927; affd., 167 N. Y. 280.

The Appellate Division, in the Matter of Clinch, 99 App. Div. 298; affd., 180 N. Y. 300, says, up to that time there was a mere claim on the part of Robert (the deceased legatee) or his executors against his father's executors for a share or interest in the father's estate, which passed by his will: " Such claim was, at most, a mere chose in action, which followed the residence of the claimant and, as indicated, it would be impossible to determine as to what property, if any, would be ultimately transferred by reason of it. But when an actual distribution had taken place, that which theretofore was uncertain became certain, and at that moment a tax attached to the transfer." Citing Matter of Huber, 86 App. Div. 458, 83 N. Y. S. 769.

138. Widow's Dower Not Taxable.

The Court of Appeals held in Chamberlain v. Chamberlain, 43 N. Y. 424, that a dower right at the time of testator's death is the property of the widow and not of the testator, and therefore is not devisable.*

A wife's inchoate right of dower is not derived from her husband, but it vests at the moment of the grant to her husband and she takes it constructively as purchaser from the grantor. Kursheedt v. Union Dime Savings Institution of City of New York, 118 N. Y. 358.

When it was essential under an early statute of this State to determine the relation of the wife to the grant made of land to her husband, it was held that the wife's inchoate right of dower vested at the moment of the grant to the husband; and that she took such right, constructively, as purchaser from the grantor. Sutliff v. Forgey, 1 Cow. 89; 5 id. 713; Priest v. Cummings, 20 Wend. 61; Lawrence v. Miller, 2 N. Y. 251.

Quære. In case the husband is seized of real property at the time of his marriage, how can this rule apply as to the widow's dower in such property?

One of the first questions raised when chapter 41 of the Laws of 1903 went into effect, March 16th of that year, taxing the real as well as the personal property of a decedent passing to those in the 1-per cent. class, was whether a widow's dower was taxable. The practice has been to consider the widow's dower as not subject to the provisions of the Transfer Tax Law, for the reason, doubtless, that it is not a transfer to her by will, or the intestate laws, or, as a gift to take effect at or after the husband's death, within the meaning of the statute.

The value of the widow's dower has accordingly been computed and deducted from the appraised value of the real estate, and the residue only has been subject to tax. Matter of Riemann, 42 Misc. Rep. 648, 87

N. Y. S. 731.

139. Purchase and Maintenance of Burial Plot.

1

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.

In view of the language of the Court of Appeals in the Gould Case, 156 N. Y. 423, and the Appellate Division in the McAvoy Case, 112 App. Div. 377, it would appear that the decision in the Matter of Vinot (supra) would scarcely meet with the approval of the appellate courts at this time. See Matter of Fay, N. Y. Law Journal, December 29, 1908.

140. Cost of Monument, etc., Incurred by Executor.

While it has been held that a sum spent by an executor in the erection of a monument to decedent is

not taxable (Matter of Edgerton, 35 App. Div. 125), and that a reasonable sum spent in the purchase of a burial plot for decedent may be regarded as a part of the funeral expenses and therefore a proper deduction (Matter of Liss, 39 Misc. Rep. 123), there is a manifest distinction between such expenditures made by an executor in his discretion, and a bequest made by decedent in his will to a certain beneficiary and for a certain specific purpose. Matter of Fay, N. Y. Law Journal, December 29, 1908.

141. Stocks Belonging to Wife, Pledged to Secure Loan for Husband's Benefit, Are No Part of His Estate.

Where the certificates representing corporate shares were originally issued to and, at the time of the death of the testator, stood in the name of his wife, but were then held by a trust company as collateral security for her two notes representing loans the proceeds of which were paid to the testator, and were assigned to the trust company by separate instruments attached thereto appropriate for their use as collateral, to be detached when the notes were paid; and where no evidence is offered tending to show that the testator bought the shares or ever owned them or received dividends from them, and it appears that the testator, who held other shares in the same corporations at the time of his death, standing in his own name, recognized his wife as the owner of certain of said shares by joining with her in an assignment which included the same, such shares must be deemed, upon the appraisal of the transfer tax on the testator's estate, as no part of the testator's estate. Matter of Parsons, 51 Misc. Rep. 370; affd., 117 App. Div. 321.

§ 220

Charitable Corporation to Be Formed.

142. Bequest to Charitable Corporation to Be Formed after Decedent's Death.

A testator may leave property to a charitable corporation to be formed after his death and within the statutory period of two lives in being. Such a gift does not vest until the formation of the corporation. The income accruing on the fund prior to such incorporation, if not disposed of by will, belongs to the next of kin under the Statute of Distribution. The income cannot lawfully be accumulated for the corporation as "the person presumptively entitled to the next eventual estate." Such an accumulation of income for an unformed charitable corporation is not authorized by chapter 701 of the Laws of 1893.

An alternative legatee, who is to take only if the gift to a charitable corporation fails because of illegality or becomes impossible of realization, is not entitled to such income accruing before the vesting of the charitable gift. St. John v. Andrews Institute, 191 N. Y. 254.

143. Bequest to a Church for Masses-Not Taxable.

Where a legacy is bequeathed to religious bodies, the provision for masses is merely collateral and incidental, and the bequests are not taxable. Matter of Didion, 54 Misc. Rep. 241.

144. Legacy to an Unincorporated Charitable Association.

Surrogate Thomas, in the Matter of Cobey, N. Y. Law Journal, December 1, 1908, held that a legacy given by will to an unincorporated charitable association, to wit, Conference of St. Vincent de Paul Society, is a valid bequest, and directed payment of the legacy to the conference, citing Murray v. Miller, 178 N. Y. 316, 321, and Matter of Graves, 171 N. Y. 40, 47.

Curtesy.

§ 220

145. Curtesy.

It would seem that since the enabling acts, allowing married women to sell and devise their lands, that a husband's right as tenant by the curtesy initiate as to the lands acquired by the wife, consists simply of a status, which is never a vested right, and is not separately alienable during coverture, but may be modified or annulled at any time before it becomes consummate by the death of the wife. Thurber v. Townsend, 22 N. Y. 517; Matter of Clark, 40 Hun, 233; Albany Co. Sav. Bank v. McCarty, 149 N. Y. 71-85. The taxability of this life estate of the husband under the Transfer Tax Law has never been passed upon by the courts, although it is apparent that while curtesy is initiate, it is not an estate, but a simple possibility or expectancy which may be destroyed at the will of the owner of the fee.

146. Id. Does Not Attach to a Remainder in Fee Not Reduced to Possession in Wife's Lifetime.

An estate by the curtesy does not attach to property conveyed to a wife subject to the use and occupation of another during life, where she was never in actual possession of the property, and she died before the termination of the life estate. Collins v. Russell, 184 N. Y. 74.

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