
    In the Matter of the Estate of Charles H. Edwards, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed March 5, 1895.)
    
    1. Tax—Transfer—Gift causa mortis.
    Property, passing by virtue of a gift causa mortis was subject to taxation under chapter 723 of 1887.
    2. Same.
    The donee was held, under the facts in the case, to have failed to establish that the pass books were not taxable on the ground that his donor was not the owner of them.
    Appeal from an order imposing a tax.
    
      Harris & Corwin, for app’lt; Emmet R. Olcott, for resp’t.
   Dykman, J.

This is an appeal from an order of the surrogate of Kings county confirming a tax under the transfer tax laws. The fácts are these: On the 16th day of October, 1888, Charles H. Edwards made a gift causa mortis to James A. Ridden of a tin box and it contents. The box contained sixteen savings bank books, seven of which represented accounts standing to the credit of Charles H. Edwards, and nine of which represented accounts standing to the credit of Thomas Edwards. Thomas Edwards was the father of Charles H. Edwards, and he died before Charles, who was his only relative and heir at law. The appraiser appointed by the surrogate valued the property at $26,227.48. and that valuation was confirmed, and a tax was imposed upon that sum under the transfer statute of this state.

The donee of the gift has appealed from the order, and insists that there can be no tax upon the amounts represented by the bank books which stood in the name of Thomas Edwards, because Charles H. Edwards was not the owner of such accounts. The facts developed fail to justify that contention. The bank books were in the possession o'f Charles H. Edwards, and Ridden, the donee, received them from him. All the title he ever had to any of the bank books was derived from his donor, and that title was affirmed by the court of appeals. Ridden v. Thrall, 125 N. Y. 572 ; 35 St. Rep. 913. It is to be collected from the affidavit, of Ridden, printed in the appeal book, that, when he made a claim against the banks for the money standing to the credit of Thomas Edwards upon the nine bank books which contained his name, he was confronted by a claim of the representatives of the estate of Thomas Edwards, which he compromised by paying them the sum of $5,000. Thereupon he received the money from the banks, and he received it as owner. He did not acknowledge the claim of the representatives of Thomas Edwards to the ownership of the money. He merely acknowledged them as adverse claimants, and made a compromise with them. In other words, he bought them off by paying them about one-fifth of their claim. He took no assignment from them, but, as between him and the banks, he evidently based his claim to the money upon the donation of Charles H. Edwards. The legal effect of his compromise with the representatives of the estate of Thomas Edwards was to quiet their claim, and perfect his title to the property which he received from his donor.

The appellant also contends that property passing by virtue of a gift causa mortis was not subject to taxation under the statutes which were in force in 1888, when the gift in question was made. That statute was as follows:

“ After the passage of this act all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while a resident of this state, * * * or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, * * * shall be and is sulyect to a tax.” Laws 1887, c. 713, section 1.

This statute evinces the intention of the legislature to subject to a tax all property which should be transferred by a gift to take effect after the death of the grantor or bargainor. The title to the property passed to the appellant upon its delivery to him by the donor, but the gift was subject to revocation at all times during the lifetime of the giver, and in that sense it took effect in enjoyment after the death of his grantor. He could not have maintained an action for the recovery of the money represented by the bank books during the lifetime of Charles H. Edwards, and therefore he could not enter upon the full enjoyment of the gift until after his death. The gift, therefore, seem to fall within the spirit and intention of the statute, and the tax was therefore properly imposed.

The order should be affirmed, with costs.

All concur.  