The application by LK, as executrix of the last will and testament of Mr. DK, deceased, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. An order of the surrogate of Kings County, confirming the report of the appraiser, having been affirmed by an order of the appellate division of the Supreme Court, the applicant now appeals.
This is an appeal from an order of the appellate division of the Supreme Court in the Second department, affirming an order of the surrogate of Kings County, which confirmed the report of an appraiser appointed to fix the transfer tax upon the property of the estate of Mr. DK, deceased. Mr. DK died in the city of Brooklyn, June 29, 1895, leaving a last will and testament, which was admitted to probate on the 10th of the following September. LK, the appellant, alone qualified as executrix thereof. She subsequently petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.
The will of the decedent, so far as material to the questions involved on this appeal, is as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situate, unto my three sisters, M, A, and L.’ Mary died prior to the death of the testator. The appraiser fixed the tax upon the theory that the testator died intestate as to one-third of his estate, by reason of the predecease of M; that A and L each took one-third of M’s share as next of kin; and that the remaining one-third passed to nine nephews and nieces of the decedent, as their share of the estate which was undisposed of by the will. The appraiser filed his report with the surrogate December 10, 1895, and on the same day the surrogate made an order confirming it, and assessing the tax at the amount mentioned therein. From that order an appeal was taken to the surrogate, and the former order and report of the appraiser were confirmed, and an appeal was taken to the appellate division of the Supreme Court, where the latter order was affirmed.
No question as to the facts or the procedure in this case arises upon this appeal. The sole question involved relates to the construction of the testator’s will, and is whether the bequest was to the testator’s sisters jointly, or whether they took the property as tenants in common. That, upon the death of one of the legatees before the decease of the testator, the legacy lapsed if it was to the legatees as tenants in common, are not denied by either party. The courts below have held that the legatees took as tenants in common, and hence that, as to one-third of the testator’s estate, he died intestate.
The appellant’s contention is that the legatees took jointly, and, if not, that the bequest was to the sisters of the decedent as a class, and consequently there was no lapse in the disposition by reason of the death of one of the legatees. We do not think that contention can be sustained. While, at common law, such a bequest would have constituted the legatees joint tenants, yet, under the statutes of this state, the rule is clearly otherwise. The Revised Statutes provide that ‘every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy.’ This statute applies to personal as well as real estate.
The statutes and decisions are controlling, and cannot be changed or rendered nugatory by any mere rule of construction. The decision of the appellate division was correct, and should be affirmed.
If you have questions on the issues discussed above call the experienced lawyers of Stephen Bilkis & Associates.