the manner in which his estate shall be administered. In re Daniell, 40 Misc. Rep. 329, 81 N. Y. Suppl. 1033.

The testator gave a legacy to a doctor in view of his care and services during the testator's years of sickness "without asking any reward for services rendered, as he knew my means were somewhat limited." The court holds that the question is not whether there is a claim which the testator may honorably, but not legally appoint to pay, but whether the creditor has a claim to which there is no legal defence which he can enforce by legal proceedings. The court says that the physician by neglecting to make a claim as a creditor has waived any rights and must come in as a legatee only.

"By neglecting to present any account to the executor, or prove any claim against the estate, and having accepted the gratuity which the deceased provided for him in her will, it was the duty of the executor, on its payment to him, to deduct therefrom the tax which had been assessed by the surrogate. If he desired to escape the payment of the tax, or was dissatisfied with the amount of the legacy, he should have established his debt, if he had any, against the estate, and had it paid by the executor in the usual manner, and let the legacy to him go into the residuary assets.

"The times have been

That, when the brains were out, the man would die,
And there an end; but now they rise again,

With twenty mortal murders on their crowns,
And push us from our stools.

"So, in the settlement of estates, the legal skeletons of stale claims and outlawed demands stalk forth from their charnel houses and their graves, and seek to push from their stools the guests whom the testator has invited to the feast." Per Kennedy, S., in In re Doty, 7 Misc. Rep. 193, 56 N. Y. St. 626, 27 N. Y. Suppl. 653, 656.

Contract to Leave by Will.

The testator died in 1901 leaving a will, and the inheritance tax was compromised by the executor. An action was brought relying on an ante-nuptial contract with the testator to leave by will certain property, which agreement the testator had failed to fulfill. The action ended by a judgment for the plaintiff, and the court ordered the executors to turn over to the plaintiff the property covered by the contract.

The court holds that this transfer is subject to the inheritance tax, as it was not a contract to convey, but a contract to make a will. Had the deceased performed his agreement and bequeathed the property the estate would have been subject to the tax. It does not affect the question of the liability of the estate to taxation that in consequence of the failure of the testator to carry out his promise the beneficiary was obliged to resort to a court for relief. The judgment of the court converts the devisees or heirs at law, as the case may require, into trustees for the beneficiary under the original agreement. Therefore the devolution of the property has in fact taken place under the will, and such devolution is subject to the transfer tax. In re Kidd, 188 N. Y. 274, 279, 80 N. E. 924, reversing 115 N. Y. App. Div. 205, 100 N. Y. Suppl. 917.

Where in 1899 the intestate entered into an ante-nuptial contract in writing, by the terms of which, in consideration of his marriage, he agreed to provide for his wife by his last will and testament in case she survived him, the court holds that her rights are in the nature of a debt, and therefore not subject to taxation under the transfer tax law. She takes under the contract and not by will. In re Baker, 178 N. Y. 575, 70 N. E. 1094, affirming 83 N. Y. App. Div. 530, 82 N. Y. Suppl. 390, 38 Misc. 151, 77 N. Y. Suppl. 170.

Bequest for Consideration.

The will of Jay Gould recited that, his son having conducted his business for many years with great ability, he had fixed the value of the son's services at five million dollars; and evidence was introduced that this legacy was by agreement in view of the son's services and was for compensation and no other purpose. The court holds, however, that the New York statute does not limit the tax to property "gratuitously given by will,” but that the word "transfer" covers the gift by will, whatever the method may be, whether to pay a debt or to discharge a moral obligation, or to benefit a relative for whom the testator entertained a strong affection. In re Gould, 156 N. Y. 423, 428, 51 N. E. 287, modifying 19 N. Y. App. Div. 352.

On the other hand, where a bequest is made to the foreman of the testator of four thousand dollars on condition he should accept it in full of all claims, and it appeared that the amount of the legatee's claim for services was in excess of the sum bequeathed, the legacy is not a gift and is not subject to the inheritance tax. In re Underhill, 20 N. Y. Suppl. 134, 2 Con. Surr. 262.

Ante-Nuptial Contract.

An ante-nuptial contract entered into by which the testator agrees to leave certain property by will to his wife is not one "intended to take effect in possession or enjoyment" until after the death of the obligor. It is not subject to taxation under the transfer tax act unless it can be shown that the agreement was entered into in bad faith where the husband in fact died intestate. In re Baker, 178 N. Y. 575, 70 N. E. 1094, affirming 83 N. Y. App. Div. 530, 82 N. Y. Suppl. 390, 38 Misc. 151, 77 N. Y. Suppl. 170.

An ante-nuptial agreement by which the husband transferred certain stock to the wife, and the next day she transferred the same stock back to him as trustee to apply to the mutual use of the parties during their joint lives, is not a gift to the wife in contemplation of death.

raneous.

The court holds that the two agreements are not contempoIn re Miller, 77 N. Y. App. Div. 473, 78 N. Y. Suppl. 930, overruling 75 N. Y. Suppl. 929. See, however, In re Kidd, 188 N. Y. 274, 80 N. E. 924, reversing 115 N. Y. App. Div. 205, 100 N. Y. Suppl. 917, noted fully ante, p. 842.

Money Advanced to Legatee.

The testator left the remainder of his property to his wife for life and on her death among his six children, deducting from the share of two of his sons money advanced to them, and charging their shares with these sums.

The court holds that these sums lent in advance to the sons are not regarded as advancements, but that they are claims belonging to the estate, and hence they are subject to the inheritance tax. In re Bartlett, 4 Misc. Rep. 380, 25 N. Y. Suppl. 990.

"OF ANY TANGIBLE PROPERTY WITHIN THE STATE AND OF INTANGIBLE PROPERTY."

This language is entirely new and was inserted by the act of 1911.

Insurance Policies which Testator had Assigned.

Where two policies upon their face were payable to the estate of the decedent and at his death were found in his safe deposit vault, and attached to each policy was an assignment of it in consideration of love and affection to his wife, the comptroller contends

that under section 220 the tax is payable upon the transfer of those policies upon the theory that the transfer was first by death and second by an assignment to take effect in possession or enjoyment at the death of the decedent.

The court holds that as against the state the deceased was not possessed of the policies at the time of his death and that the widow did not obtain title to them through his will or by the laws of the state of New York. This is an absolute present assignment of the interests of the assignor in the policy; therefore, no transfer tax is assessable. In re Parsons, 117 N. Y. App. Div. 321, 102 N. Y. Suppl. 168, affirming 51 Misc. 370, 101 N. Y. Suppl. 430.

Stock Held as Collateral.

Where stock is purchased by stock brokers for a customer with their own money and they hold the stock as collateral with other stock deposited with them, the customer is merely the pledgee of the stock, the brokers being the owners of the property subject to a right to redeem upon paying the entire amount of the debt, and therefore the stock should not be included in the transfer of the estate of the customer. A subsequent sale of the stock by the brokers for the satisfaction of their lien extinguishes whatever right or title the decedent had and demonstrates that instead of being the owner of the property the estate was indebted in a large sum to the brokers. In re Havemeyer, 32 Misc. Rep. 416, 66 N. Y. Suppl. 722.

The testator was a non-resident of New York and had a speculative stock account with brokers in the city of New York, and on the day of his death owed them large sums of money on stocks and bonds purchased by them for him with their own money.

The court holds that the deceased was under contract with the brokers to apply certain pledged securities to the payment of the debt and the executrix performed that contract. The executrix argued that having paid a portion of the debt with pledged nontaxable securities, which are not under the transfer tax law considered as "property" in this state, she has a right to treat such portion of the debt as still existing for the purpose of offsetting against it property otherwise taxable. But the court holds that the executrix cannot claim that the balance of the debt after applying taxable property pledged which has actually been paid with nontaxable securities pledged for that purpose should be carried as a debt to credit and offset against clearly taxable property. And

while for the purposes of taxation non-taxable property is not to be treated as taxable property, yet it was part of the estate of the deceased which passed to the executrix and she chose to cause its sale and application to the debt of the deceased; and therefore the balance of the taxable property in the state of New York consisting of real estate and personal property is subject to the tax. In re Burden, 47 Misc. 329, 95 N. Y. Suppl. 972.

Equitable Interests.

A gift in contemplation of death was made by a father to a daughter and she died within a few days of his death before the certificates of stock had been actually transferred to her, before she had received any dividends. The stock passed under her will as her property, and so passing is a transfer under the transfer tax law of the state which must suffer a tax. In re Borup, 28 Misc. Rep. 474, 59 N. Y. Suppl. 1097.

Joint Deposit.

The courts have sought so far as possible to ascertain the real ownership in a joint deposit and measure the tax accordingly. Hence a joint deposit in a savings bank made up of sums which were given by the decedent to his wife was not taxable. In re Rosenberg, 114 N. Y. Suppl. 726. A deposit made in a national bank in the joint names of the husband and wife was originally owned by the decedent. Where the amount of the deposit at the time the account was made joint was made up entirely of money belonging to the decedent and where the checks were drawn out for household expenses and made up by money of the wife, the court says that if the money belonged to the wife then it is not taxable and if it was a joint account with right of survivorship then the case is governed by the Stebbins case, 103 N. Y. Suppl. 563, and the money is not taxable in either event. In re Graves, 52 Misc. 433,

103 N. Y. Suppl. 571.

Where the husband and wife deposited money in a savings bank in their joint names, with account payable to either or survivor, the wife has an interest in the deposit to give her an equal right with him to withdraw it during their joint lives and vests her with the absolute title in case she survives him. The court holds that in this case it was not the intention of either party to divest himself of the control and use of this money so long as both lived, and that the accounts were entered so that either could draw money during their joint lives as a matter of convenience, and