
    Matter of the Tax Appraisal upon the Estate of Henry B. Baker, Deceased.
    (Surrogate’s Court, Monroe County,
    May, 1902.)
    Transfer tax — Not enforcible against a widow on the amount duel her under an ante-nuptial agreement.
    The amount due a widow under am ante-nuptial agreement made in contemplation of marriage by which her subsequent husband agreed, in lieu of her renunciation of dower and of her rights as widow and of her rights to a share in his personalty, to provide for her in a fixed sum by his last will or out of his estate in any event, should she survive him, is a debt of his estate and the widow is entitled to full payment without diminution by the transfer tax.
    Such an agreement is made in contemplation of marriage and not • of death.
    
      The decedent died intestate July 25, 1901. On November 24, 1899, the decedent made an ante-nuptial agreement with Bora Johnston. It was in writing, and, after reciting their contemplated marriage, and that the party of the first part was desirous of making provision for a fit and proper settlement for the use and benefit of his said intended wife, provided, among other things: “ Third. In case said party of the second part shall survive the said party of the first part, he hereby agrees' to make provision by his 'last will and testament or otherwise, that she shall have and receive out of his estate, the sum of twenty ($20,000) thousand dollars, with interest from the date of his decease, in consideration of said marriage and also in lieu of dower and of all 'nights as widow in his estate; and in case no such provision is made as aforesaid, then such sum is to be paid out of his estate at all events by those who shall administer the same.”
    There was also a provision in the .’'agreement, to the effect that “ said provisions so made as herein specified shall be in full satisfaction of her dower in his estate and of all rights as widow in his estate, and shall bar her from claiming the same if she shall survive him after said marriage, and < further, if the said marriage shall be had, and she shall survive him, that she will not claim any share in his personal estate (other than said provisions so made as herein specified) unless some part thereof shall be given her by his will or ’act done by him subsequent to the execution of these presents.”
    The parties were married January 11, 1900.
    The widow was duly appointed administrator, and on the judicial settlement of her account, was allowed by the surrogate, as a claim against the estate, the sum of $10,000 upon said ante-nuptial agreement, being said $20,000 mentioned in said agreement less an insurance policy of $10,000, which by agreement between the widow and next of kin was allowed thereon.
    Pending the entry of the decree on such judicial settlement, this proceeding for tax appraisal of the estate was taken, and was heard by said surrogate, as appraiser. Tax Law, § 229, Laws of 1901, chap. 173.
    [William T. Plumb, for State Comptroller.
    
      Charles M. Williams, for widow.
    Hiram R. Wood, for next of inn.
   Benton, S.

The agreement between Dora H. Johnston and Henry B. Baker made in contemplation of marriage between them was a contract founded upon an ample consideration for the promise of the deceased. Peck v. Vandemark, 99 N. Y. 29, 35. The agreement is not a grant conveying a present interest in property. Johnston v. Spicer, 107 N. Y. 185, 195. FTor is it testamentary in its character. A suit will lie upon its breach for damages. See cases above cited. Vogel v. Vogel, 22 Mo. 161. It is a debt within the meaning of the usual clause in a will directing the payment of debts, and the executor may pay it as such. Warner v. Warner, 18 Abb. N. C. 151.

It is not made in contemplation of death", but of. marriage. That in this particular case one of the parties to the contract becomes entitled to its consideration upon the death of the other, and so “ enters into the possession or enjoyment thereof,” at or after such death, is but an incident of, and not of the essence cf the contract. The time of payment of the consideration is fixed at death, but it would be equally valid if fixed at some other period or time, and in either case the consideration is none the less a debt payable from the estate of the deceased.

The contention that this is a transfer by sale, intended to take effect in possession or enjoyment at or after death, would apply equally to a note made payable after the death of the maker, yet such note is entirely valid and enforcible against the personal representatives of the deceased, for its face and interest. Hegeman v. Moon, 131 N. Y. 462.

Mrs. Baker is entitled to the payment of the consideration of that contract for the purposes of this proceeding, $10,000, with interest thereon from the date of Mr. Baker’s death, and without diminution, for such is the obligation of that contract. But the Transfer Tax Law makes the transferee personally liable for such tax until its payment. § 222. I doubt if Mrs. Baker could be held to a personal obligation to pay such tax, because she is entitled under that contract to the full payment of its consideration.

For all these reasons it seems to me that the $10,000 of the consideration of said antenuptial agreement now payable from the estate of Henry B. Baker, is not subject to tax under the Transfer Tax Law of this State. A decree may be entered accordingly, but taxing the remainder of the estate going to the sister of Mr. Baker at one per cent., which would appear to be about $12,333,55.

Decreed accordingly.  