§ 220 Note - Husband and Wife. have been previously given by the decedent to his wife, such deposit was not taxable. For other decisions involving savings bank deposits in trust, joint accounts, payable to either or the survivor, etc., see McElroy v. National Savings Bank, 8 App. Div. 192, 40 N. Y. S. 340; McElroy v. Albany Savings Bank, 8 App. Div. 46, 40 N. Y. S. 422; Hallenbeck v. Hallenbeck, 103 App. Div. 109; Matter of King, 51 Misc. 375; Matter of Stebbins, 52 Misc. 438; Kelly v. Albany Trust Co., 124 App. Div. 99; Kelly v. Home Savings Bank, 103 App. Div. 141, appeal withdrawn 182 N. Y. 568; Matter of Meehan, 59 App. Div. 156; Matter of Graves, 52 Misc. 433; Moore v. Fingar, 115 N. Y. S. 1035. * * Section 114 of the Banking Law was amended April 30, 1907, by chapter 247 of the laws of that year, adding thereto the following clause: "When a deposit shall be made by any person in the names of such depositor and another person and in form to be paid to either or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons upon the making thereof shall become the property of such persons as joint tenants and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof." 101. Promissory Note Payable to Husband and Wife. In the Matter of Sanford v. Sanford, 45 N. Y. 723, the court holds that if one, in loaning money, takes a promissory note therefor, payable to the order of himself and his wife, this imports a gift to the wife in case she survives him, and delivery of the note to her by the husband is not necessary to perfect the gift. During the husband's life such note remains subject to his control, and the wife has no legal interest therein until his decease. Judge Peckham says: "The note being payable to husband and wife jointly belonged to the wife as survivor. Taking this note in the name of himself and wife shows that the husband intended thereby to give it to her in case she survived Bond-Husband and Wife. 8 220 him, and a delivery to her was unnecessary to perfect the gift. Assuming this to be so, yet during the life of the husband the note is subject to his control and disposition. The wife has no legal interest in it until his decease." See also Fowler v. Butterly, 78 N. Y. 68-72. If there is no transfer of a legal interest in this gift during the husband's life, it would seem that property so held could only be considered a gift, to take effect at or after the donor's death, and would therefore be liable to taxation. 102. Bond and Mortgage - Held by Husband and Wife Jointly. Where a husband and wife each furnished half of the amount of a loan and took as security therefor a bond and mortgage payable to them jointly, — held, that, upon the death of one of them, the interest of the decedent vested, not in the survivor, but in the personal representatives of the decedent. Matter of Albrecht, 136 N. Y. 91. The court says: We are aware that there are many authorities holding that where the husband purchases a security or makes a deposit, or subscribes for stock in the joint name of himself and wife and pays therefor with his own funds, upon his death the entire security belongs to the wife if she survives him. But the decision in all these cases is put upon the ground that it is apparent from the character of the transaction that the husband intended to give the property to his wife in the event of her survivorship, and hence the transfer possesses all the essential qualities of a gift causa mortis, which he may revoke in his lifetime § 220 Tenancy by the Entirety. and which does not take effect until his death if not previously recalled. While he lives his control over it is unlimited and at his death it becomes her absolute property, if she survives him, but if she does not the gift is not consummated, and the husband retains the entire title. But if the husband and wife each contribute to a joint investment or to the purchase of a security and the title is taken in their joint names to be held by them, their executors, administrators, or assigns, as was the bond and mortgage in the present case, no presumption can properly arise from the nature of the act that either intended to make a gift of his or her share to the survivor." 103. Tenancy by the Entirety -Does Not Apply to Personal Property. When a husband and wife, being tenants by the entirety, convey lands and take back a purchase-money mortgage payable to both, the survivor is not entitled to the whole proceeds of the mortgage. As a mortgage is personal property, the rule as to tenancy by the entirety does not apply; to create a survivorship there must be an agreement to that effect or a gift causa mortis. Matter of Baum, 121 App. Div. 496, 190 N. Y. 564, appeal dismissed. 104. When "Tenants in Common of the Use." Under a conveyance to a husband and wife they take as tenants by the entirety, but they are tenants in common of the use, each being entitled to one-half of the rents and profits, so long as the question of survivorship is in abeyance. Hiles v. Fisher, 144 N. Y. 306. Joint Tenancy. § 220 105. Agreement between Partners Does Not Create Joint Tenancy. An agreement between partners that they were "jointly" interested in all real and personal property heretofore held or now or hereafter held in the joint name or individual name of either of them, places the property referred to in the position simply of partnership property, and does not create a strict joint tenancy therein under which, on the death of one of the partners, the property would pass to the survivor, and the surrogate was right in refusing to allow the sum of $250,000, or any amount, for the alleged claim of the surviving partner to the whole assets of the firm. Matter of Wormser, 51 App. Div. 441-443, 64 N. Y. S. 897. 106. Taxability of an Estate - What Law Determines. The taxability of an estate is to be determined by the law in existence at the date of the transfer, notwithstanding a subsequent alteration of the law. Matter of Goelet, 78 N. Y. S. 47; Matter of Davis, 149 N. Y. 539. 107. Legacy in Lieu of Dower Is Not a Debt of the Estate. The decedent bequeathed to his wife the sum of $10,000, and also devised to her a certain house and lot in New York city. He provided that the gifts to his wife should be in lieu and bar of dower as follows: "I expressly declare the foregoing bequest and devise to my said wife to be, with the provisions already made for her, in lieu and full satisfaction of all dower *." Subsequent to making the will, the testator conveyed to his wife all real estate which by his will he had devised to her. The widow accepted the pro § 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.) 109. Id. Without Consideration Transfer Is Taxable. 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 |