
    In the Matter of the Appraisal Under the Transfer Tax Acts of the Property of David F. Kimberly, Deceased. Louisa Kimberly, Executrix of David F. Kimberly, Deceased, Appellant; Hubert G. Taylor, County Treasurer, etc., and Others, Respondents.
    
      A devise to several persons creates a tenancy in common — IS. 8. 737, § 44, Laws 1786, chap. 12.
    Every devise to several persons creates a tenancy in common, unless the testator, by some formal expression, clearly indicates his intention to create a joint tenancy.
    Appeal by Louisa Kimberly, as executrix, etc., of David F. Kimberly, deceased, from a decree of the' Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 8th day of January, 1896, confirming the report of an appraiser, and also from a decree of said Surrogate’s ' Court entered December 10, 1895, confirming said report and fixing the amount of the. transfer tax due upon the estate of David F. Kimberly, deceased.
    
      Edward Goldschmidt, for the appellant:
    
      Robert B. Bach, for the county treasurer and district attorney, respondents. '
   Brown, P. J.:

David F. Kimberly died in the city of Brooklyn in June, 1895, never having been married. By his will he bequeathed all his estate, real and personal, to his three sisters, Mary,. Annie and Louisa. Mary died before the testator, and it is the appellant’s claim .that the bequest in the will is joint and that the, surviving sisters take the whole estate. The surrogate held that the bequest was to the three sisters as tenants in common. That the bequest to Mary lapsed and as to one-third of his estate the testator died intestate. Under- this ruling one-ninth of the estate was transferred to nephews and nieces and was subject to a tax of five per cent.

There is no dispute as to the proposition that where there is a devise or a bequest to'a plurality of persons as joint tenants no lapse can occur unless all the beneficiaries die in the intestate’s lifetime, and that in the event of any of the beneficiaries dying, the survivor takes the whole bequest. The only question before us, therefore, is as to the construction of the will.

We need not inquire what the character of this gift would have been at common law, as we are of the opinion that it is controlled by the statute of this State, which declares that every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be a joint tenancy.” (1 R. S. 727, § 44.)

The general rule of the common law was that an estate devised to- two or more persons created a joint tenancy (Lorillard v. Coster, 5 Paige, 228); but this rule was at an early date changed in this State (Chap. 12, Laws 1786), and the provision then enacted was subsequently embodied in the Revised .Statutes. The effect of this statute is that every devise creates a tenancy in common unless the testator by some form of expression clearly indicates his intention to create a joint tenancy. (Coster v. Lorillard, 14 Wend. 342; Moore v. Lyons, 25 id. 119; Everitt v. Everitt, 29 N. Y. 40.)

There is no such indication in the will before us, and the bequest to the testator’s sisters was as tenants in common, and the order must be affirmed, with ten dollars costs and disbursements.

All concurred.

Order of surrogate affirmed, with ten dollars- costs and disbursements.  