
    Matter of the Property of Bridget M. Wood, Deceased, Subject to Tax Under the Taxable Transfer Acts.
    (Surrogate’s Court, Monroe County,
    June, 1910.)
    Limitation of actions—Accrual of cause of action—Action against co-tenant for contribution.
    Taxes — Inheritance and transfer taxes—Assessment—Appraisal — Deduction of amount of contribution due cotenant for improvements.
    The liability of a tenant in common to contribute to the cost of improvements made by his cotenants is not barred by the Statute of Limitations as long as the cotenancy exists.
    
      In appraising the interest of one of several cotenants of real property for the purposes of the transfer tax, allowance should be made for contribution for improvements made by cotenants, though not within the statutory period.
    Appeal from an order of an appraiser assessing the transfer tax.
    Charles M. Williams, for appellant.
    William T. Plumb, for State Comptroller.
   Brown, S.

This is an appeal from an order made in the above-entitled matter upon the report of Hon. Bobert Averill, appraiser, which order was entered on December 4, 1909.' It is claimed by the appellant that the property of the decedent is assessed too high. It appears that the estate of the decedent consisted solely of her interest in real estate which she inherited with her brother and sister from their mother. After the mother’s death the property was improved by the erection of buildings by the cotenants. The decedent had no funds and was unable to join in furnishing money for the building. The appraiser allowed $4,000 for money advanced by one of the cotenants to help build a building, Hos. 114, 116 S'cio street, which building was a part of the common property, but the decedent had paid nothing or put up nothing to offset said $4,000 furnished by the cotenant for the building thereof. I think this action on the part of the appraiser was correct, but the objection of the appellant is that he did not allow $8,098.80 more, which some thirty years ago was paid by a cotenant of Mrs. Wood, the .ancestor of the cotenants of the decedent, at the time of her death. It appears in evidence that- such $8,098.80 was expended for new buildings on the premises owned in common by the decedent and her cotenants; that said $8,098.80 was not offset by any similar or other contribution on behalf of the decedent in the building of such building; that the families lived in common .and had no accounting between one another. I assume that the reason why the appraiser did not allow this $8,098.80 is that the claim was so old that, he assumed that the Statute of Limitations applied and he had no authority to allow it. If this was his reason, he was in error, for the Statute of Limitations does not apply to partition actions and accountings in partition - actions, so long as the relation of cotenancy exists. It is subject, during its existence, to equitable accounting during its entire continuance. 21 Am. & Eng. Ency. of Law (3d ed.), 1174, subd. b, note 4.

It has been held that each tenant in common is not only vested with the title to his undivided interest in the common estate, but each holds a contingent interest in the entire title until all equities relating to the tenancy are •adjusted. Thus, if one tenant has made necessary and lasting improvements on the common estate, or has paid the taxes legally assessed against it, he will hold the title of his co-tenants until he is reimbursed; or, if the property has passed by descent and one of the heirs has received advancements, he must account for the .advancements, and the other heirs will hold his title until their respective interests can be equalized in a partition proceeding.”

Accordingly, it appearing that such improvements were made to the property, and considering the relations of these parties, living where each presumably knew what the other was doing, .and the one having no property with which to make such improvements, the other cotenants and their privies would be entitled upon a partition .action to have such improvement made upon the property allowed to them before a division of the proceeds, and the Statute of Limitations would not be a defense to such allowance. Ford v. Knapp, 102 N. Y. 142; Jones v. Duerk, 25 App. Div. 551 ; Satterlee v. Kobbe, 173 N. Y. 91.

The State of ¡New York should tax only that which belonged to the decedent at her death and, if as between the parties there were equitable rights which would cut down the value of the real estate of the decedent* only the balance of such interest should be taxed. ¡Notwithstanding the fact that no proceeding has been commenced, and notwithstanding the fact that it might be claimed that no contribution would ever be asked, nevertheless that does not justify the taxation of property that the decedent did not own and which does not pass to the heirs at law as her property; for from the authorities above cited I am of the opinion that the co-tenants could require contribution, and, if they did not, that would be a matter of graciousness on their part and would not increase the value of the estate of the decedent passing upon her death subject to the Transfer Tax Law.

I accordingly reduce the amount of the value of the property of the decedent, as fixed by the order herein on the report of the appraiser, by the sum of $8,098.80, being the amount of advancements made by cotenants in the building or buildings upon the common property, not allowed by the appraiser.

The appeal is also for the reimbursement of payments made for taxes by Mr. Kavaney. I disallow this, on the ground that these taxes paid by him were payments made by a person not a party to the title, in.other words, not a co-tenant, and that any payments made by him are rather in the character of a loan than of a payment which entitled him to a lien on the land. I accordingly disallow the appeal on that item.

Let an order be entered herein amending the order appealed from in accordance with this decision, without costs to either party as against the other.

Ordered accordingly.  