The sole question presented by this appeal is, "did the grantees named in the contract in question acquire an absolute title to the real and personal property described therein upon its execution and delivery to them % If they did, clearly the determination of the learned Surrogate’s Court that the transfer of such property was not taxable under the Tax Law was correct, arid the orders appealed from should be affirmed. It is equally well settled that if such title did not vest in the grantees until at or after the death of the grantor, -such transfer is taxable. Such is the language of the statute. Subdivision 3 of section. 220 of the act (Laws of 1896, chap. 9Ó8, as am'd. by Laws of 1897, chap. ’284) provides n “ When the transfer is *483of property made by a resident, or by a nonresident when such nonresident’s property is within this State, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death,” such transfer is subject to taxation. (Matter of Brandreth, 169 N. Y. 437 ; Matter of Cornell, 170 id. 423.)
In Matter of Green (153 N. Y. 223) the court said : “ It matters not whether the transfer is by grant or by gift, so long as it was intended to take effect in possession or enjoyment at or after the death of the grantor or donor"; the devolution of title is subject to the tax.” , • '
Whether a transfer of property by grant is taxable does not depend upon the manner of paying the consideration. Such payment may be made in annuities; it may be postponed until after the death of the grantor. ' If adequate it may be made in such manner and at such time as the parties may agree upon. The test is, was the transfer intended to take effect in possession or enjoyment at or after death ? As was said by Mr. Justice Hatch in Matter of Thorne (44 App. Div. 8): “ If the testimony given upon the proceeding establishes that the testator did not intend that Mrs. Huff - should have the possession and enjoyment of the property until his death, then the case is brought within subdivision 3 of section 220' of the Tax Law.” In that case it was held that the transfer was not taxable, solely because the evidence failed to show that the gift to Mrs. Huff by the testator was subject to any legal limitation. In the case at bar it is not claimed that the conveyance was made in contemplation of death, or that the consideration expressed in the agreement was not adequate; so that we have only to inquire whether the transfer was intended to take effect in possession or enjoyment at or after the death of the grantor. The intent must be ascertained from the language of the contract, if not ambiguous, or, if its meaning is in doubt, the situation of the parties and the surrounding circumstances may be considered in connection with the language in determining its true meaning, and the purpose and intent of the parties in making it..
The agreement was dated February 20, 1904. One Silas L. Strivings was named as party of the first part, and George Hess, *484'now deceased, party of the second part. The first party agreed in substance that he with his wife and family would remove to the farm and residence of the second party on or before the first day of April following ; that he would thereafter with his wife occupy the dwelling house of the second party in common-with him and his . wife; would board and care for them, reside with .them and work the farm so long as the second /party and his wife Or either of them' should live. He also assumed certain other minor obligations. The income of the farm was to belong to him,, subject, as we think, to the support and maintenance of the second party and his wife. Só far the contract was a most simple one. Strivings and -his family' were to live with, care and provide' for Hess and his wife in Hess’*
dwelling, house on the farm during their natural lives. He was also to work the-farm during such time, and for such care, support, maintenance and work he was to have the avails of the farm. But, in addition, it was provided that in consideration, of the covenants and agreements to be kept and performed by Strivings,.Hess- “does hereby - grant and convey, subject to said, agreements, to Silas L. Stri'vings.and' Mae L. Strivings, liis wife, of Gainesville, H. Y., all of the following described property, real estate and premises: ” Then follows" a description of the premises. The agreement then continues: “ With the appurtenances thereto, and together-with all the farming ' tool's, wagons, sleighs, conveyances and stock and all household furniture belonging to said second party, * "-' - "x" to them and their heirs forever. Reserving the right to support, maintenance and residence on said premises, as hereinbefore, provided, during the"life of ■ said second party and his said wife and each of them.” It is then provided' that the grantees shall not sell or convey the premises , during the lifetime of the grantor or his wife.;
We think it clear that by the agreement the ..title to the property in question did not vest in the grantee's upon the execution and " delivery of such instrument, and that it was not the intention of the parties that it should so vest. The -true meaning and interpretation" of the instrument is that the grantees should not become vested with the title until after the death of George Hess and his wife, and then ■ only in case they had kept and performed the covenants and obligations which they assumed. Such, we think, is the express language of the agreement. .The grant is made “subject to said agree-*485meats.” Such language is susceptible of no other meaning than that the grantees will become the owners of the subject of the grant if they live in the farmhouse with the grantor, and support the grantor and his wife in sickness and in health, and work the farm for and during their natural lives.
If Silas L. Strivings had died immediately after moving into Hess’ dwelling house and it then became impossible for him to perform his “ agreements,” could it "be claimed, notwithstanding, that the farm and all the property thereon'would belong to his estate, and that Hess would have been relegated to an action at law to recover damages as for breach of contract? Hess never agreed that Strivings and his wife should ever become the owners of his farm by paying a money consideration, but in consideration of their society, their personal care and attention, and of working the farm during the natural lives of Hess and of his wife. Such obligation could not be discharged by Strivings by procuring some one else to work the farm, or by inducing some other man and his wife to reside vpth the grantor and his wife during their natural lives. The contention of the respondent can only prevail by holding that by the agreement in question it was intended that Hess had parted with all title to his farm, notwithstanding every item of the consideration which induced the grant failed. If, as before suggested, Strivings and his wife died the day following their removal to Hess’ dwelling house, how would it be possible to realize any of the advantages which induced the conveyance ? Hess and his wife could not have for companions the persons selected by them, could not be cared for, maintained and supported by those whom he deemed proper to render such service to him and his wife as long as they, or either of them, might live. “ Subject to said agreements ” means that" the title to the farm should not vest until their performance.
The other clause in the contract is equally significant — “ Reserving the right to support, maintenance and residence on said premises ” during the life of Hess and of his wife. That clearly effected a reservation out of or from the thing ■ granted, and conclusively indicates that it was not intended that an absolute title should vest in the grantees until the obligations assumed by them had been performed. By the instrument the grantor conveyed all his household furniture. Is it reasonable to suppose that the title to it vested
*486absolutely'in the grantees, and'that the morning after they came to live with him the.grantor did not own the bed upon which he and his wife slept? That the title to all the furnishings and conveniences in his house was absolutely vested in the grantees and could be sold to satisfy a judgment against Strivings, unless he should claim and could establish their exemption?; We think it was not the intention of the agreement in case of the failure of Strivings and his wjfe to perform the essential, features of the oblk. gat-ions which Strivings had assumed, perhaps because of his death or insolvency, that Hess should be deemed to' have parted with the title to his farm, and his only remedy for redress would be to recover a money judgment as for breach of contract against Strivings or his estate. We think such interpretation of the contract is Unreasonable; that it is not warranted by any language contained in the agreement or by any of the .surrounding circumstances. -As was said in Matter of Cornell (supra): “In case of the death or. insolvency of the donee, or of his failure to comply, with his agreement, a court of equity would have appointed a new trustee of the fund and the testator would not have been.relegated to the position of a mere creditor of the donee.” In the contingency suggested a new trustee might have been appointed in this case, were it not for the fact that the consideration-for the transfer and all of it was of a personal character; was of..a character that could not be performed by any' persons other than the grantee' and his wife. As before suggested, they were to have the farm only upon condition, that they should reside with, care for, maintain and support the grantor and his wife and work their farm during -the natural lives of the grantor and liis wife. The grantees named \yere the persons selected by the grantor to perform such services, and the performance of such obligation could not be delegated by them.
We conclude that by -the contract in question only a conditional sale and transfer- of the property in question was effected; that it did not become absolute until the death of the grantor and his wife, .and then only provided the grantees had reasonably performed the obligations assumed by them; that the transfer was “ intended to take effect in possession or enjoyment at or after” the-deatli of the grantor. . ■ ■ '
It follows that the orders appealed from should be reversed, with *487costs payable by Silas L. Strivings individually, and the order of the Surrogate’s Court affirming the report of the appraiser providing for the tax of the property in question should be affirmed.
Decree and order of the Surrogate’s Court affirmed, with costs.