
    In re EDWARDS’ ESTATE.
    (Supreme Court, General Term, Second Department.
    March 5, 1895.)
    1. Transfer Tax—Gift Causa Mortis.
    Property passing by virtue of a gift causa mortis is subject to the tax under Laws 1887, c. 713, § 1, which provides that all property “which shall be transferred by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, * * * shall be and is subject to a tax.”
    2. Same—Title of Donor.
    In a proceeding to impose the transfer tax on property passing by gift causa mortis, it appeared that the property consisted of savings bank books, - some of which stood in the name of the donor’s deceased father, and that the donor was the only next of kin of his father. The right of the donee to such pass books was contested by the representatives of the estate of the donor’s father, and the donee thereupon paid them a sum of money to withdraw their claim, but he took no assignment from them, and did not recognize their claim as owners of the money. Held, that the donee could not assert that such pass books were not taxable because his donor was not the owner of them.
    Appeal from surrogate’s court, Kings county.
    Appraisal under the transfer tax laws of the property of Charles H. Edwards, deceased. From an order imposing a tax, James A. Bidden appeals. Affirmed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Harris & Corwin, for appellant.
    Emmet R. Olcott, for respondent.
   DYKMAN, J.

This is an appeal from an order of the surrogate of Kings county confirming a tax under the transfer tax laws. The facts are these: On the 16th day of October, 1888, Charles H. Edwards made a gift causa mortis to James A. Ridden of a tin box and its contents. The box contained sixteen savings bank books, seven of which represented accounts standing to the credit of Charles H. Edwards, and nine of which represented accounts standing to the credit of Thomas Edwards. Thomas Edwards was the father of Charles H. Edwards, and he died before Charles, who was his only relative and heir at law. The appraiser appointed by the surrogate valued the property at |26,227.48, and that valuation was confirmed, and a tax was imposed upon that sum under the transfer statute of this state.

The donee of the gift has appealed from the order, and insists that there can be no tax upon the amounts represented by the bank books which stood in the name of Thomas Edwards, because Charles H. Edwards was not the owner of such accounts. The facts developed fail to justify that contention. The bank books were in the possession of Charles H. Edwards, and Bidden, the donee, received them from him. All the title he ever had to any of the bank books was derived from Ms donor, and that title was affirmed by the court of appeals. Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627. It is to be collected from the affidavit of Bidden, printed in the appeal book, that, when he made a claim against the banks for the money standing, to the credit of Thomas Edwards upon the nine bank books which contained his name, he was confronted by a claim of the representatives of the estate of Thomas Edwards, which he compromised by paying them the sum of $5,000. Thereupon he received the money from the banks, and he received it as owner. He did not acknowledge the claim of the representatives of Thomas Edwards to the ownership of the money. He merely acknowledged them as adverse claimants, and made a compromise with them. In other words, he bought them off by paying them about one-fifth of their claim. He took no assignment from them, but, as between him and the banks, he evidently based his claim to the money upon the donation of Charles H. Edwards. The legal effect of his compromise with the representatives of the estate of Thomas. Edwards was to quiet their claim, and perfect his title to the property which he received from his donor.

The appellant also contends that property passing by virtue of a gift causa mortis was not subject to taxation under the statutes which were in force in 1888, when the gift in question was made. That statute was as follows:

“After the passage of this act all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while a resident of this state, * * * or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, * * * shall be and is subject to a tax.” Laws 1887, c. 713, § 1.

This statute evinces the intention of the legislature to subject to a tax all property which should be transferred by a gift to take effect after the death of the grantor or bargainor. The title to the property passed to the appellant upon its delivery to him by the donor, but the gift was subject to revocation at all times during the lifetime of the giver, and in that-sense it took effect in enjoyment after the death of Ms grantor. He could not have maintained an action for the recovery of the money repre'sented by the bank books during the lifetime of Charles H. Edwards, and therefore he could not enter upon the full enjoyment of the gift until after his death. The gift, therefore, seems to fall within the spirit and intention of the statute, and the tax was therefore properly imposed.

The order should be affirmed, with costs. All concur.  