
    In the Matter of the Transfer Tax upon the Estate of Hedwig Sexauer, Deceased. State Tax Commission, Appellant; Ernest Sexauer, as Executor, etc., of Hedwig Sexauer, Deceased, Respondent.
    Second Department,
    June 13, 1930.
    
      Seth T. Cole [Harry M. Peyser and William D. O'Brien with him on the brief], for the appellant.
    
      John J. Halpin, for the respondent.
   Per Curiam.

We are of opinion that, under the facts disclosed by this record, the petitioner’s wife, now deceased, took title to the property, the transfer tax upon which is the subject of this litigation, as an absolute conveyance, notwithstanding the fact that the proof submitted by petitioner is that he paid the consideration therefor and has since exercised over it acts of ownership. The petitioner claims to have taken the property in the name of his wife for business reasons. The facts before us do not justify a finding that a constructive trust existed in favor of the petitioner within the meaning of Foreman v. Foreman (251 N. Y. 237). The proof justifies no other conclusion than that the petitioner made a gift of the premises to his wife by taking title thereto in her name. (Weigert v. Schlesinger, 150 App. Div. 765; affd., 210 N. Y. 573; Shapiro v. Shapiro, 208 App. Div. 325; McCahill v. McCahill, 71 Hun, 221; McCartney v. Titsworth, 119 App. Div. 547; Kushlowitz v. Blum, 134 Misc. 607.)

The order of the Surrogate’s Court of Queens county exempting this estate from transfer tax should be reversed upon the law and the facts, without costs, and the matter remitted to the Surrogate’s Court for the purpose of assessing a transfer tax upon the real property, title to which was in the name of the decedent at the time of her death.

Lazansky, P. J., Rich, Hagarty, Carswell and Tompkins, JJ., concur.

Order of the Surrogate’s Court of Queens county exempting estate from transfer tax reversed upon the law and the facts, without costs, and matter remitted to the Surrogate’s Court for the purpose of assessing a transfer tax upon the real property, title to which Was in the name of the decedent at the time of her death.  