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Fourth Department, July, 1911.

[Vol. 146. gate in his opinion states that such stipulation was made. It seems to me that the remainder of the fund was also liable to the tax. If it was intended that the transfer should become effective in possession or enjoyment at grantor's death then necessarily it was subject to tax. It may be observed that there are a number of provisions in the trust deed pointing to that intention on the part of the grantor. For instance, if the net income of the fund proved insufficient to provide for her monthly payments, the principal of the fund must be resorted to to make up the deficiency; the trustees were to render annual accounts and the audit and approval thereof by the grantor was to be binding and conclusive upon all other parties beneficially interested; the grantor had a voice in naming any substitute for, or successor of, a trustee (a privilege not reserved to any other cestui que trust), and an annual meeting of the trustees at the home town of the grantor at which their accounts were to be made and stated is provided for. But beyond this it seems to me clear that by the terms of the deed itself possession and enjoyment of the corpus of the trust fund was not to be effective until the death of the grantor. The trustees were, as has been pointed out above, upon the death of the grantor to convert the trust estate into money, divide it into a designated number of shares and distribute and pay over said shares to designated beneficiaries. The provisions designating such beneficiaries are, so far as material to the present investigation, similar in their effect; and if the transfer to one beneficiary is subject to tax they all are. The designation of beneficiaries, following the provision that the trustees on the death of the grantor “distribute and pay over said shares to the following persons, to wit:” proceeds as follows: “A. To Peter Patterson of Woodstock, Ontario, Canada, brother of said first party twenty-eight (28) of such shares to be his absolutely. If said Peter Patterson shall not survive said first party, [the grantor) said twenty-eight shares shall go to and become the property of the persons who at the time of his death, under the statutes of the State of New York providing for the distribution of intestates' personal property, would be entitled to take his personal estate. If, however, any of such parties entitled to take such distributive share may have deceased

App. Div.]

Fourth Department, July, 1911. before such distribution the share to which said person would have been entitled if living shall become the property in equal shares of his or her next of kin, under the laws of the State of New York, then living.” It is plainly apparent that Peter Patterson had no absolute right to the share of the fund referred to in this item unless and until it was determined that he survived the grantor. Until then, though he may have had a vested interest in that portion of the fund as a beneficiary, his interest therein was subject to the contingency of being defeated by his death prior to the grantor's death. His right to the possession and enjoyment of the fund could in no event become fixed until that contingency was determined. It was dependent upon his being alive at the death of the grantor. If he did not survive her the share went to others. He could not, during her life, dispose of it except subject to that contingency. In this case the persons entitled to the possession or enjoyment of the corpus of the fund could not be ascertained until the death of the grantor when the right immediately became fixed. The transfer to the beneficiary taking effect in possession or enjoyment only on the death of the grantor, it was, therefore, under the statute subject to tax. That this was the intention of the grantor as to the time possession and enjoyment should be effective is still further strengthened by a subsequent provision of the trust deed as follows: Twelfth. If the distribution of any of the shares of property provided for by the terms of this instrument shall, by operation of law or otherwise, lapse, become inoperative or void it is expressly provided by the party of the first part that any and all such shares and all property distributable thereunder shall be transferred by said The Trustees to the legal representatives of the estate of the party of the first part and become a part of her estate." Contingencies might arise before her death, as the grantor foresaw, by which the attempted disposition of the fund to the beneficiaries named in the deed might fail in whole or in part; che, therefore, provided that such provisions as should lapse, or become inoperative, should be returned to her estate.

Appellants rely largely upon two cases: Matter of Masury (28 App. Div. 580; affd., 159 N. Y. 532) and People v. Kelly (218

Fourth Department, July, 1911.

(Vol. 146. Ill. 509). Neither of these cases seems to me to be in point. In the Masury case the trusts which were held not subject to transfer tax were the absolute property of the cestui que trustent, subject only to the trust; and one point decided was that a reservation to the grantor of a power of revocation of the trust did not show an intention to make the possession or enjoyment of the fund effective only on the death of the grantor. WOODWARD, J., says (p. 583): “ It is necessary, to bring this property within the scope of the law, that * * * it was 'intended to take effect in possession or enjoyment at or after such death.' The property need not have been in the possession of the appellants; if they were in the enjoyment of the property, or the income from the property, prior to the death of the grantor, and if their relations to the property were not changed by the fact of such death, then the order of the Surrogate's Court confirming the appraisal should be set aside.” He then demonstrates that the relations of the beneficiaries to the property included in certain of the trusts were not changed by the fact of the grantor's death and were, therefore, not liable to tax. But, as we have already pointed out, the relations of the beneficiaries to the fund were in the case before us changed and fixed by the death of the grantor. I think the Illinois case is distinguishable for a like reason.

All concurred.

Orders affirmed, with costs.

CHILLINGSWORTH F. PERRIN, Respondent, v. IRVING HARRING

TON, Appellant, Impleaded with EAST SIDE SAVINGS BANK and Others, Defendants.

Fourth Department, July 11, 1911.

Real property-deed - tenants by the entirety-conveyance to man and

woman not legally married - tenancy in common-rights of cotenant.

Although a conveyance is made to a man and woman in the form,“ husband

and wife, as tenants of the entirety," they do not take as tenants by the entirety with a right of survivorship, when in fact, although living together, there was no marriage between thein, one of the parties being bound by an existing marriage.

App. Div.]

Fourth Department, July, 1911.
A tenancy by the entirety can only exist where there is a valid marital

relation between the grantees at the time of the conveyance.
Although tenants in common presumptively take in equal shares, the pre-

sumption may be rebutted if the facts show that equitably they should hold in different shares. Hence, where the father of the woman paid two-thirds of the considera

tion for the conveyances and the man with whom she lived paid the other third, the father on the death of his daughter, being her sole heir, is entitled in equity to two-thirds of the value of the lands.

APPEAL by the defendant, Irving Harrington, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of March, 1911, upon the decision of the court rendered after a trial at the Monroe Special Term.

David N. Salisbury (Salisbury & Agate), for the appellant.

Delbert C. Hebbard [Smith & Hebbard], for the respondent.

ROBSON, J.:

Plaintiff's action is in partition, and his interest in the premises in question is put in issue by defendant's answer. Plaintiff is the father and sole heir at law of Louise Brown, also known as Louise Harrington, who died intestate July 7, 1909. Prior to her decease she had lived with and passed as the wife of defendant Harrington for something more than a year, but they had never been married. She had been married some Pears before that to one Brown, with whom she lived only a short time. No divorce dissolving that marriage was ever had, and, so far as appears, she remained his wife up to the date of her death. On or about May 3, 1909, the premises, partition of which is sought in this action, were conveyed to the defendant and the intestate. The grantees in the deed of conveyance are named and described as follows: Irving Harrington and Louise Harrington, husband and wife, as tenants of the entirety, of Rochester in said County and State, parties of the second part.” At the time this deed was delivered $3,000 of the purchase price of $6,400 was paid in cash. The remainder of the purchase price was made up of $2,200, the amount of a mortgage already a lien on the premises, and a bond and

Fourth Department, July, 1911.

(Vol. 146 mortgage of the grantees securing the payment of $1,200. Harrington furnished $1,000 of the cash payment, and plaintiff $2,000 thereof for his daughter, the other grantee. The trial court has held that the grantees in this deed on its delivery became seized of the premises as tenants in common in the shares proportionate to the several amounts contributed by or for them, the defendant Harrington one-third and plaintiff's daughter two-thirds; and that on her death her share and interest therein descended to plaintiff as her sole heir at law. Defendant insists that this decision is erroneous. First. Because he, on the death of intestate, as surviving grantee was entitled to the whole fee. Second. If this be untenable, that he was as tenant in common entitled to an equal share therein.

It must be conceded that the effect of the deed, except for the description of the grantees as “husband and wife, as tenants of the entirety,” would have been that the grantees would take as tenants in common. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52), $ 66.) This section declares in effect that every conveyance of real property to two or more persons in their own right creates a tenancy in common unless expressly declared to be in joint tenancy. “Joint tenancy, whether in land or personalty, is not favored either in law or equity, and it will never be inferred where any other deduction can be fairly made. In consequence survivorship, which is an incident to joint tenancy, is seldom presumed.” (De Puyv. Stevens, 37 App. Div. 289, 294.) But the intention to create a tenancy other than a tenancy in common must be given effect, if such intention can be gathered from the whole instrument, and is consistent with the rules of law. (Real Prop. Law, $ 240, subd. 3; Miner v. Brown, 133 N. Y. 308; Coleman v. Beach, 97 id. 545.) In this deed the intention that the grantees are to take as husband and wife, as tenants by the entirety, does appear. But they could not take in that tenancy, because they were not and could not under existing conditions ever legally become husband and wife. Such a tenancy can exist only between a lawful husband and wife and cannot exist between two people under any other circumstances. It is a tenancy in its nature dependent upon the existence of the marital relation at the time

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