
    Matter of the Appraisal under the Acts in Relation to Taxable Transfers of Property of the Estate of Graves S. Squibb, Appellant.
    (Surrogate’s Court, Kings County,
    May, 1916.)
    Husband and wife — when tenants in common — contracts — evidence — when securities not subject to transfer tax.
    Where a husband and wife rent a safe deposit box they are tenants in common of the lease and securities which are the separate property of each placed in the box by one of them remain his or her property unless the ownership be changed by contract.
    Where upon the death of the wife there were found securities in the box eoneededly belonging to her and other securities, which originally belonged to her husband, were in an envelope indorsed to the effect that the contents, life insurance bonds, were the property of the wife, held, that in the absence of proof of delivery of the bonds to the wife and her acceptance thereof for the purpose of making a present gift the ownership of said bonds remained in the husband and were not subject to a transfer tax as a part of the wife’s estate.
    Appeal from an order assessing and fixing the transfer tax.
    George S. Ingraham, for appellant.
    Marcus B. Campbell, for state comptroller, respondent.
   Ketcham, S.

Where husband and wife together rent a safe deposit box and each deposits therein securities which are the separate property of the depositor, no suggestion is thereby supplied either of gift or joint ownership. They own the lease of the box in common and not by joint tenancy. Securities placed by one of them in the box remain his or her property, unless ownership be changed by some contractual act.

In this case there was a box in which, upon the death of the wife, there were found securities which concededly belonged to her and other securities which originally belonged to the husband.

The comptroller claims that these securities, once the husband’s, are a part of the wife’s estate.

It will be for a moment assumed, but without conviction, that the husband and wife were together the lessees of the box.

There is no basis for a finding that there was joint ownership as to any of the contents of the box. None can be derived from the joint use of the depository. Matter of Brown, 86 Misc. Rep. 187; affd., 217 N. Y. 621. This was the effect of the case cited supra, in which the facts were largely more suggestive of an understanding between the parties that survivorship should be the result. Indeed, if there were joint ownership solely by reason of the lease, the only effect would be that all the contents would now belong to the husband.

Unless, then, a gift by the husband be shown, there is no basis for any tax. A gift causa mortis is excluded. The only evidence upon which it is argued that a gift was made is contained in the fact that the husband’s securities were kept in the repository in an envelope endorsed, in his handwriting, Life insurance bonds, property of Mrs. E. H. Squibb.”

Without proof of delivery to the wife and acceptance by her, both for the purpose of making a present gift, the ownership of the bonds in the envelope remains to this day in the husband. No such evidence is supplied by the legend which he put upon the envelope. The appeal is sustained.

Order affirmed.  