
    Matter of the Estate of Mercedes de Escoriaza, Deceased.
    (Surrogate’s Court, New York County,
    November, 1914.)
    Deeds — when transfer of real estate not subject to transfer tax — when given in contemplation of death — taxes. • "
    A transfer of real estate in the ordinary course of business for a valuable consideration is not subject to a transfer tax though the grantor was old and infirm and contemplated her early death.
    In a transfer tax proceeding upon the grantor’s estate it was incumbent upon the state to show that the deed by which she conveyed the real estate to herself and daughter as joint tenants, in consideration of one dollar and other good and valuable considerations, was given in contemplation of death or that the transfer was limited in such a way that it could not take effect in possession or enjoyment until after the grantor’s death.
    The recital of the consideration for the deed not having been successfully impeached by the state, the grantee’s right to take the real estate as survivor was derived from the deed and it was not a taxable transfer.
    Appeal by the state comptroller from an order assesing a tax upon a transfer of property effected by. the will of decedent.
    Edward F. Boyle, for state comptroller, appellant.
    Walter S. Newhouse, for executrix, respondent.
   Fowler, S.

This is an appeal by the state comptroller from an order assessing a tax upon the transfer of property effected by the will of the decedent. Prior to the 14th of December, 1911, the decedent was the sole owner of certain real estate situated at Throggs Neck, in Westchester county, N. T. On that date she executed a deed by which she conveyed the said real estate to herself and her daughter as joint tenants; The consideration recited in the deed was “ $1 and other good and valuable consideration.” She died on the 21st of August, 1913. The state comptroller contends that the transfer of the real estate is subject to taxation under subdivision 4 of section 220 of the Tax Law. That subdivision provides that a transfer is taxable when it is made 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. ” The transfér referred to in this subdivision is a gratuitous transfer, or, in other words, a gift. Matter of Hess, 110 App. Div. 476, affd., 187 N. Y. 554. If the grantor, although old and infirm and contemplating his early demise, conveys his real estate in the ordinary course of business for a valuable consideration, such transfer is not subject to a transfer tax. It is only when the conveyance to the grantee is not supported by a valuable consideration, and is made in contemplation of the death of the grantor or intended to take effect in possession or enjoyment at his death that it is subject to a transfer tax. To justify the imposition of a tax upon the decedent’s interest in the real estate in question, it was incumbent upon the state comptroller to show that the deed was given by the grantor as a gift to the grantee and that it was given in contemplation of the death of the grantor, or that the transfer was limited in such a way that it could not take effect in possession or enjoyment until after her death. The deed executed by the decedent on the 14th of December, 1911, conferred upon her daughter all the rights of a joint tenant in the real estate therein described. Among these was the right of survivorship. If this right was a gift from the decedent to her daughter it would be subject to a tax. But the evidence submitted to the appraiser does not show that it was a gift. The deed recites that the conveyance was made for $1 and other good and valuable consideration.” This statement in the deed was not successfully impeached by the state comptroller. Therefore, as the daughter’s right to take the real estate as survivor was derived from the deed, and the latter was given by the grantor for a valuable consideration, it is not a taxable transfer. Matter of Hess, supra; Matter of Heiser, 85 Misc. Rep. 271; Matter of Platzl, N. Y. L. J., Jan. 13,1914. The order fixing tax will be affirmed.

Order affirmed.  