
    Matter of the Estate of Ernest Keil, Deceased.
    
      (Surrogate’s Court, Bronx County,
    
    
      September, 1915.)
    Taxes—Appeal from order fixing transfer tax—Right of survivorship.
    On appeal by an executor from an order fixing the transfer tax on the estate it appeared that the decedent and his surviving wife by their joint industry and effort during decedent’s lifetime had accumulated the real and personal property of which the decedent died seized and that the bond, mortgage and certificate of deposit which were assessed reflected such property so accumulated and had been1 taken in the name of the husband and wife;
    
      Held, that the decedent intended when such investments were taken in his, and bis wife’s name, to create in his wife a right of Survivorship, and that therefore the amount represented by the bond, mortgage and certificate of deposit was not subject to the payment of a transfer tax.
    Appeal from an order fixing transfer tax.
    Maurice B. Blumenthal, for appellant.
    John Boyle, Jr., for state comptroller, respondent.
   Schulz, S.

The executor of the last will and testament of the decedent appeals from an order fixing the tax upon the latter’s estate and urges two errors, alleged to have been made by the appraiser.

At the time of the death of the decedent there were in existence a bond secured by a mortgage on real estate made to the decedent “ and Anna Keil, his wife,” in the sum of $14,000, which with interest to the date of death of the decedent amounted to $14,245, and also a certificate of deposit issued to the decedent and Anna Keil, the latter being the decedent’s wife, for $1,000, which with accrued interest amounted to $1,114.24. The appraiser in fixing the value of these two items for purposes of taxation assessed them at their full face value. It is urged by the appellant that they should have been assessed at one-half of that amount for the reason that they were the property of the decedent and Anna Keil, his wife, jointly.

The testimony shows that the decedent in or about the years 1876 or 1878 went into the delicatessen business in Forty-sixth street, New York city, and that he began with practically no money other than a few dollars which he borrowed; that both decedent and his wife worked in the business and its earnings were due to the efforts of both; that after some years with the money thus realized the husband and wife purchased the real property where the business was conducted and which they had theretofore rented; that subsequently when the property was sold a mortgage in the sum of $15,000 was taken back by the decedent and his wife. This mortgage was later paid off, the money thus received to the amount of $14,000 was invested on the bond and mortgage which is now the subject of consideration. The other $1,000, the appellant urges, is the amount evidenced by the certificate of deposit above referred to, but as to this I find no evidence in the record.

The original source of the money now reflected in the bond and mortgage and in the certificate of deposit, however, was the delicatessen business on Forty-sixth street. It appears that the decedent handled the money, collected the interest, made bank deposits, etc., but when he bought the real estate on Forty-sixth street with this money and subsequéntly invested the proceeds of this real estate, he made such investments in his own name and that of his wife.

Under the authority of Matter of Thompson (167 App. Div. 356), the fact that the bond, mortgage and certificate of deposit were taken in the names of the husband and wife, in the absence of evidence to the contrary, shows an intention to create in the wife the right of survivorship, and, this being so, it follows that no part of the same was subject to a transfer tax. (Citing Sanford v. Sanford, 45 N. Y. 723; Matter of Meehan, 59 App. Div. 156; West v. McCullough, 123 id. 846, affd., 194 N. Y, 518. See, also, Matter of Dalsimer, 167 App. Div. 365; Matter of Tilley, 166 id. 240, affd., 215 N. Y. 702.) FTo evidence appears which in my opinion would warrant me in finding that the decedent had a different intent. On the contrary, from the evidence submitted, I reach the conclusion that the money which is now invested on bond and mortgage and that which is evidenced by the certificate of deposit having had its source in the joint efforts of the husband and wife, the decedent intended when he made the investments stated to create in his wife a right of survivorship.

It follows that neither the bond and mortgage nor the certificate of deposit is liable to any tax.

Even if there had been no evidence at all as to the sources from which the money came which is now reflected in these securities, I feel that under the form of investments and under the law as enunciated in Matter of Thompson (supra), the same result would obtain.

The order appealed from is reversed and the report is remitted to the appraiser for correction as indicated..

Order reversed and report remitted to appraiser.  