
    In the Matter of the Appraisal under the Act in Relation to Taxable Transfers of Property of the Property of Henry B. Baker, Deceased. Nathan L. Miller, Comptroller of the State of New York, Appellant; Dora H. Baker, Individually and as Administratrix, etc., of Henry B. Baker, Deceased, Respondent.
    
      JS'ansfer tax—ante-nuptial agreement to pay a certain sum to a wife in lieu of dower—it constitutes a debt and is not taxable—words “in contemplation of the death” construed.
    
    November 24, 1899, Henry B. Baker entered into an ante-nuptial agreement with his intended wife, by which, among other things, he agreed that if the marriage should occur and she should survive him, he would make provision by his last will and testament for the payment to her from his estate of the sum of $20,000. His intended wife agreed to accept the provisions of the ante-nuptial agreement in lieu of her dower and other rights in her husband’s estate.
    The marriage occurred January 11, 1900. July 25, 1901, Balter died intestate leaving surviving him his widow and a sister, who was his only heir at law and next of kin. By an agreement entered into between the sister and the widow, the widow accepted the avails of a §10,000 policy of life insurance upon the life of the decedent which had been transferred to her by the decedent prior to his death in part satisfaction of the amount due upon the ante-nuptial contract and the remaining sum of §10,000 was subsequently paid to her from the decedent’s estate.
    The decedent was not ill at the time the ante-nuptial agreement was executed and it did not appear that the agreement was made with intent to evade the law.
    
      Held, that the §10,000 received by the widow from the decedent’s estate was not taxable under subdivision 3 of section 220 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 284) which provides for the imposition of a transfer tax, “when the transfer is of property made by a resident * * * by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death;”
    That the claim of the widow under the ante-nuptial agreement was in the nature of a debt;
    That the words “in contemplation of the death ” used in the statute do noc refer to that general expectation of death which every mortal entertains, but rather the apprehension which arises from some existing condition of body or some impending peril.
    Appeal by Nathan L. Miller, Comptroller of the State of New York, from a decree of the Surrogate’s Court of Monroe county, entered in said Surrogate’s Court on the 16th day of February, 1903, determining the transfer tax upon the estate of Henry B. Baker, deceased.
    On the 11th day of January, 1900, the respondent, whose maiden name was Dora H. Johnston, was married to the decedent, Henry B. Baker. Prior to such marriage and on the 24th day of November, 1899, the parties entered into an ante-nuptial contract in writing, by the terms of which the decedent, in consideration of such contemplated marriage, agreed to give to his intended wife the sum of $1,000 on or before the date of their marriage, and in the event that the marriage was consummated and his wife should survive him, to make provision by his last will and testament for the payment to her from his estate of the further sum of $20,000. The respondent upon her part agreed that, in consideration of the foregoing provisions and the payment to her of the sum of $500 upon the execution of the contract, she would accept the same in lieu of her dower rights in the decedent’s estate and all other rights as his widow, and that she would, upon request, quitclaim to him or his heirs any such interest that she might have in property which he then owned or might subsequently acquire.
    Mr. Baker died intestate on the 25th day of July, 1901, leaving him surviving this respondent, his widow, and a sister, who was his only heir at law and next of kin. By an arrangement entered into between these two parties the respondent accepted the avails of a $10,000 policy of life insurance upon the life of the decedent which had been transferred to her by the latter prior to his death, in part satisfaction of the amount due her upon her contract, and the remaining sum of $10,000, with interest thereon, was subsequently paid to her from the estate.
    This latter sum, it was claimed by the State Comptroller, was subject to a transfer tax and such proceedings were thereupon had that it was finally and duly determined by the surrogate of Monroe county that the same was exempt from taxation under the provisions of article 10, chapter 24, of the General Laws (Laws of 1896, chap. 908, as aind.), known as the Taxable Transfer Act, and from such determination this appeal is brought.
    
      William T. Plumb, for the appellant.
    
      Charles M. Williams, for the respondent.
   Adams, P. J.:

It is conceded that the decedent was a resident of this State, and the only question involved in this appeal is the construction to be given to subdivision 3 of section 220 of the General Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 284), which provides for the imposition of a transfer tax, when the transfer is of property made by a resident * * * by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.”

It will doubtless be conceded that the respondent’s claim is not one which is dependent for its validity upon a deed or grant of any kind, and, furthermore, that it is not testamentary in its character, although it did not become due and payable until after the death of her husband. It was simply the outgrowth of a contract entered into between the decedent and the claimant, which was founded upon a perfectly good and valuable consideration, and one which is regarded with favor by the law and will generally be enforced in accordance with the intention of the parties. (Johnston v. Spicer, 107 N. Y. 185; Peck v. Vandemark, 99 id. 29; White v. White, 20 App. Div. 560.)

It would seem to follow, therefore, that a claim arising from such a source is in the nature of a debt against the estate and as such enforcible like any other debt (Hegeman v. Moon, 131 N. Y. 462; Warner v. Warner, 18 Abb. N. C. 151); and if this is its character we do not see why it should be subject to taxation under the Transfer Tax Law any more than if it were a debt represented by a bond or note.

The tax imposed by the statute in question is a tax on the right of succession and not on the property itself (Matter of Dows, 167 N. Y. 227); and “ a payment of an obligation dependent upon a valuable consideration is not a succession in any sense.” (Goodrich, P. J., in Matter of Miller, 77 App. Div. 473, 481.)

But it is said that the contract was entered into in contemplation of and was not “ intended to take effect in possession or enjoyment ” until after the death of the obligor. This, in a certain sense, is doubtless true, as it would be of any other form of debt the payment of which was deferred until after the death of the debtor, but this does not affect its validity nor alter its character. (Hegeman v. Moon, supra.)

Neither, in our opinion, does it subject the debt to taxation under the act in question, unless it can be shown that the agreement was entered into in bad faith and with some evasive intent. (Matter of Bullard, 76 App. Div. 207, citing with approval Matter of Spaulding, 49 id. 541.)

This court has held that the words “in contemplation of the death ” do not refer to that general expectation which every mortal entertains, but rather the apprehension which arises from some existing condition of body or some impending peril (Matter of Spaulding, supra; affd., 163 N. Y. 607); and this we believe is now the generally accepted definition of the phrase. (Matter of Seaman, 147 N. Y. 69, 77; Matter of Mahlstedt, 67 App. Div. 176, 178.)

There is nothing in the case under discussion to lead'us to suppose Ithat the ante-nuptial contract to which reference has been made was -entered into with any design to evade the law or that its provisions for the benefit of the respondent were made in contemplation of death, within the meaning of that term as we understand and have defined it.

The decedent was not ill at the time it was executed, and for aught that appears he expected to enjoy the matrimonial relation into which he was about to enter for many years. His obligation, therefore, as was said in Matter of Miller (supra), was entered into “ in contemplation of life ” rather than of death.' Such being the clearly established intent of the parties, it necessarily follows, in our interpretation of the scope and meaning of the act, that the decision of the learned surrogate is correct and should be affirmed.

All concurred.

Decree of Surrogate’s Court affirmed, with costs.  