I think that the value of the property held by John C. Klatzl and his wife as tenants by the entirety was subject to a transfer tax but only to the extent of one-half of such value.
I am entirely clear that the wife took the property by virtue of the deed from her husband to her — not under his will — and that after the conveyance he could not have devised it away from her. The respective rights of husband and wife in land held by them as tenants by the entirety are settled by the decision of this court in Hiles v. Fisher (144 N.Y. 306). The only substantial difference between such a tenancy and a joint tenancy is that the tenancy cannot be severed except by their joint consent. The creation of such an estate is permitted by law, and I see no reason why the husband could not convey to his wife such an estate as she would get by a similar deed to them from a third person, and at the same time reserve for himself the same rights he would have under such a deed. Even if the deed created a mere joint tenancy it would be good. The statutory provision 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" does not require that the identical words "joint tenancy" shall be used in order to create such estate. It is sufficient if there is an apt description of the estate intended to be *Page 89 conveyed, and that such estate is in law a joint tenancy. But this does not dispose of the question before us.
The estates and rights of the husband and wife were these. Each was entitled to the enjoyment, use and profits of an undivided half during his or her life with an absolute fee in the whole in case of surviving the other. (Hiles v. Fisher, supra.) The undivided half to the enjoyment, use and profits of which the husband was entitled during his life never passed into the possession of the wife until her husband's death, and, consequently, then became subject to that provision of the Tax Law which declares that a transfer tax shall be imposed when the transfer is of property made in consequence of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death. (Matter ofBrandreth, 169 N.Y. 437.)
I think the order of the Appellate Division and that of the Surrogate's Court should be reversed and the matter remitted to the Surrogate's Court, with directions to assess the transfer tax upon the value of one-half of the property in question.