*876 Where a corporation, the petitioner herein, was organized pursuant to an agreement entered into by the residuary legatees, the widow, and the executors of the will of the testator, for the purpose of holding legal title to real property, and the executors conveyed to the petitioner the real estate owned by the testator at the date of his death, subject to the dower rights of his widow, in exchange for all its capital stock, which they distributed pro rata among the residuary legatees, and the widow released and quitclaimed to the petitioner all her dower rights in the property, in consideration for which release the petitioner agreed to pay to her during her natural life an amount equal to one third of the net annual income received from the property conveyed to it, held, the annual payments made to the widow under this agreement are capital expenditures and are not deductible by the petitioner.
*904 This proceeding is for the redetermination of a deficiency in income tax determined by the respondent against the petitioner for the year 1929*877 in the amount of $3,031.06. The petitioner alleges that the respondent erred in refusing to allow as a deduction from the petitioner's gross income for the taxable year the sum of $27,495.06 which was paid to Olivia P. Hoe under the circumstances hereinafter set forth.
FINDINGS OF FACT.
Robert Hoe, a resident of the city of New York, died on September 22, 1909, leaving a will which was duly admitted to probate in the Surrogate's Court of the County of New York. No provision was made in his will for his widow, Olivia P. Hoe. Several specific bequests were made by the testator and the executors were directed to divide the residuary estate into seven equal parts or shares, one share to be given to each of his seven children, or in the case of any child who predeceased him the share of that child to go to his or her offspring. Two of his daughters had died prior to the date of the testator's death, one leaving an adult daughter and the other leavivg three minor children between the ages of five and eleven years. Under the provisions of the will these grandchildren took the respective shares of their deceased mothers.
Under the laws of the State of New York with respect to*878 the dower rights of a widow, Olivia P. Hoe became entitled to receive one third of the net rents collected from the real property of which the decedent died seized. As a part of the residuary estate of the decedent, which was divided into seven equal shares under the provisions of the will, there were eight parcels of improved real estate in New York City which produced a large annual rental. All of these parcels were subject to the dower rights of the decedent's widow. The executors took over the management of decedent's estate and from the date of his death in 1909 until January 1913 they paid to the widow one third of the net rents collected by them and divided the balance between the residuary legatees, as directed by the will.
Early in 1913 it was decided to form a corporation, it being difficult to partition the estate or to sell any of the real estate, with minor heirs interested, and it being desirable to close up the administration of the estate. Accordingly, on January 22, 1913, all of the parties interested entered into an agreement to organize the Robert Hoe Estate Co., the petitioner herein, and to convey to it their interest in all of the real estate of which the*879 decedent died seized. This agreement was executed by the adult legatees of Robert Hoe, as parties of the first part, the minor legatees by their general guardian, as party of the second part, the widow, Olivia P. Hoe, as party of the *905 third part, and the executors of the will, as parties of the fourth part. The provisions of the agreement material to this proceeding are as follows:
First: The parties of the first and second parts hereby agree to form or cause to be formed a corporation under the laws of the State of New York under the name of Robert Hoe Estate Company, Inc., having an authorized capital of seven hundred thousand dollars ($700,000), divided into seven thousand shares of the par value of one hundred dollars ($100) each. * * *
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Third: Immediately upon the organization of the corporation and the election of the officers as above provided, the said Frederick W. H. Crane and Phineas P. Chew, as executors of the last will and testament of Robert Hoe, deceased, parties of the fourth part, shall enter into a contract with said corporation to sell and convey to said corporation, under the power of sale conferred upon them by the said will of Robert Hoe, *880 deceased, all of the interest in the properties hereinabove specified of which the said Robert Hoe died seized, in consideration of the issue to them of six thousand nine hundred and seventy-nine (6,979) shares of the full paid and non-assessable capital stock of said corporation * * *.
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Fifth: The said Olivia P. Hoe, party of the third part, hereby agrees to execute and deliver to the said corporation a release of her dower right in the several properties hereinbefore described upon receiving from said corporation, in consideration for such release, a duly executed agreement whereby the said corporation shall bind itself to pay to the said party of the third part annually for and during the period of her natural life an amount which shall be equal to the one-third share or portion of the net annual income from said properties respectively received annually by said corporation, while and as long as said corporation shall continue to remain the owner of the same. And the agreement so to be made shall contain a further provision that in the event of the sale of any of the said properties during the life of the party of the third part, the corporation shall pay to her a gross*881 sum in lieu of her dower right in the property so sold, the same to be estimated according to the then value of an annuity during the probable life of the party of the third part, according to the Carlisle Table of Mortality, of five per cent on the net proceeds which may be realized from the sale.
Sixth: Upon completion of the sale and conveyance by the parties of the fourth part to the said corporation of the said real estate, the said corporation shall issue and deliver to the parties of the fourth part six thousand nine hundred and seventy-nine (6,979) shares of the full paid and non-assessable capital stock of said corporation as the purchase price of the said real estate so conveyed and in full payment therefor. * * *
It was further provided that the shares of stock should be distributed by the executors pro rata among the residuary legatees, who would receive and accept the same at par in lieu of cash for any and all right, title, and interest to which they might be severally entitled as residuary legatees in and to the real estate of which the decedent died seized.
Pursuant to this agreement the petitioner corporation was duly organized and on June 19, 1913, the executors*882 entered into a written *906 contract with the petitioner for the sale of the real estate and did convey the same by warranty deed, subject to the dower rights of the decedent's widow. The petitioner thereupon took possession of the property and collected the rents and paid dividends to the residuary legatees who were the sole stockholders.
Pursuant to the fifth paragraph of the agreement of January 22, 1913, quoted above, the petitioner entered into an agreement with the widow, Olivia P. Hoe, under date of December 11, 1913, which, after reciting that the party of the second part (Olivia P. Hoe) by deed dated December 11, 1913, had released and quitclaimed to the corporation all her dower and thirds and all her right, title, and interest in the several properties therein described, provided as follow:
Now, THEREFORE, in consideration of the sum of one dollar and of other valuable considerations hereinbefore recited to it moving, the corporation hereby covenants and agrees to and with the party of the second part as follows:
FIRST. The corporation shall pay to the party of the second part annually for and during the period of her natural life, an amount of money in cash*883 which shall be equal to the one-third share or portion of the net annual income received annually by the corporation from the several plots, pieces or parcels of land hereinbefore described, while and as long as the corporation shall continue to remain the owner of the same. Any income monies to be paid under this agreement shall begin to be computed from the first days of May, 1913, and the same shall become payable by the corporation semiannually on the first day of November and May in each year.
SECOND. In the event of the sale of any of the plots, pieces or parcels of land hereinbefore described during the life of the party of the second part, the corporation shall pay to the party of the second part a gross sum in lieu of her dower right in the plot, piece or parcel of land so sold, the same to be estimated according to the then value of an annuity during the probable life of the party of the second part, according to the Carlisle Table of Mortality, of five per cent upon the net proceeds which may be realized from the sale.
THIRD. And in consideration of the premises and of the sum of one dollar to her in hand paid, the party of the second part covenants and agrees with*884 the corporation that she recognizes and accepts the execution and delivery of this agreement as in full satisfaction of the duty or obligation toward her on the part of the corporation arising under the Fifth paragraph of the agreement bearing date January 22, 1913, hereinbefore referred to.
Olivia P. Hoe was 75 years of age when she executed the above quoted agreement of December 11, 1913, and was still living at the time of the hearing of this proceeding. During the years from 1914 to 1928, inclusive, the petitioner paid one third of the net rents collected by it in each year to Olivia P. Hoe. During this period four parcels of land were sold and payment of a gross sum was made to the widow on account of each sale, as provided in the second paragraph of the agreement dated December 11, 1913, the amount due her upon each sale being computed in accordance with her expectancy as of the date of the actual sale of the parcel.
*907 In the year 1929 petitioner paid to Olivia P. Hoe, in accordance with the terms of the agreement of December 11, 1913, the sum of $27,495.06 and deducted the same in reporting its income for that year. This amount represented one third of the*885 net rents from the remaining parcels of land and was reported as income for 1929 by Olivia P. Hoe. The respondent determined that the payment of $27,495.06 was not a proper deduction in computing the net income of the petitioner, upon the ground that it constituted a payment for the dower interest of the widow and was a capital expenditure.
OPINION.
MATTHEWS: The question before us is whether the petitioner, a corporation which purchased real property subject to the widow's right of dower from the executors of the decedent's will, may deduct from its taxable net income for 1929 the amount paid to the decedent's widow pursuant to the agreement under which it acquired the widow's dower interest in the property, the amount thus paid to the widow representing one third of the net rents collected from the property in the taxable year.
It has been stipulated that in the year 1929 the petitioner paid or credited to Olivia P. Hoe, the widow of Robert Hoe, the sum of $27,495.06 and that this sum was reported on her individual income tax return for that year. It does not follow, however, that such amount is deductible from the gross income of the petitioner.
It is the petitioner's*886 position that the agreements of January 22 and December 11, 1913, which are quoted in part in our findings, and the acts performed by the parties thereunder, constituted in effect an admeasurement of the dower of the widow in the real property of which her husband died seized, whereby there was admeasured to her one third of the net rents collected from the property during her lifetime or until a sale thereof and, in the event of a sale, a gross sum out of the net proceeds of the sale in lieu of her dower. Counsel for the petitioner earnestly contends that the acts performed by the parties under these agreements did not constitute a purchase by the petitioner of the widow's dower in the real property of which her husband died seized, as claimed by the respondent. It is further argued that, inasmuch as the petitioner did not in any event have any beneficial interest in that portion of the net rents which it paid to the widow in 1929, it was error for the respondent to refuse to deduct the amount thus paid in determining the petitioner's net income for 1929.
Section 190 of the Real Property Law of New York provides that a widow shall be endowed of the third part of all the lands*887 whereof *908 her husband was seized of an estate of inheritance, at any time during the marriage. (Book 49, McKinney's Consolidated Laws of New York, p. 208.) Upon her husband's death the inchoate right of the widow becomes dower consummate. The real property descends to the heirs or devisees subject to the dower of the widow. The right of a doweress in lands is in the nature of a charge thereon and the legal owners can not transfer the lands so as to free them in the hands of any subsequent grantees from the claim of the doweress. ; .
It never became necessary for the widow to institute any action to obtain her dower and no steps were taken to divide the decedent's estate until January 22, 1913, when all of the parties interested entered into an agreement to form a corporation to hold legal title to the real estate and to manage the same. It was not important to the widow that the corporation should be organized and she gained nothing by the execution of this agreement. She agreed to and did execute a release of her dower right in the real estate in order that the corporation*888 might hold an unencumbered fee simple title thereto, in consideration of the agreement on the part of the corporation to pay her just what she had been receiving from the executors, being a sum equal to the one-third share to which she was entitled under the law relating to the dower rights of a widow. Although this sum was not a fixed amount and it could not be determined how much would be paid to her each year until the rents were received by the corporation, and in the case of a sale of any parcel of the land the amount due the widow had to be computed in accordance with her expectancy at the time of the sale, as provided in the agreement, these payments to the widow were made to her in consideration of the release of her dower right in the property and are capital items which are not deductible in computing net taxable income.
Although the amount which the petitioner agreed to pay to the widow annually was equivalent to the amount which she was entitled to receive on account of her dower right in the property, this does not sustain the petitioner's contention that what was done was merely an admeasurement of the dower of the widow in the decedent's real property. The annual*889 payments to the widow were in fulfillment of the contractual obligation assumed by the petitioner and we consider them to be a part of the purchase price which the petitioner paid for the property which it acquired. By releasing and quitclaiming *909 all her interest in the property to petitioner, in consideration of the petitioner's agreement to make the payments agreed to be made, the widow's right of dower in the property of the estate was extinguished and thereupon the qualified right of the petitioner became a full right to the property. It follows that the total rents received by the petitioner were income to the petitioner.
It is suggested in the brief filed on behalf of the petitioner that the petitioner received the sums paid to the widow as trustee for her, but this case is clearly distinguishable from , which is relied on by petitioner, and the facts recited above do not support the contention that any trust relation was created between the petitioner and the widow in the instant case. This is not a case where a person receives income wholly as an instrumentality or agency for delivery to another. *890 The petitioner herein was not acting as a mere conduit for the transmission of income.
In view of the foregoing we hold that the respondent did not err in denying the deduction claimed by the petitioner herein. See .
Reviewed by the Board.
Judgment will be entered for the respondent.