In re the Appraisal under the Act in Relation to Taxable Transfers of Property of the Property of Majot

Scott, J. (dissenting):

Paul A. E. Majot and his wife were married in France, in which country they were both then domiciled. At some time after their marriage they moved to and became .domiciled in this country, where Majot acquired certain real and personal property. He died intestate, leaving his widow and two children. Fie and his wife did not execute a written marriage contract. The widow claims that by virtue of the term imported into the marriage contract by the French law she is entitled as survivor to onfe-lialf of decedent’s property, and that her right to receive it depending upon her contract right and not upon a will of the decedent or the intestate laws of this State, tire property so received is not liable to taxation under the Transfer Tax • Law. (See Laws of 1896, chap. 908, § 220 ■et seq., as amd.) It seems to be conceded on all hands that this contention on the part of the widow would be entirely sound if the parties had entered into a written marriage contract providing for a community of goods. (Decouche v. Savetier, 3 Johns. Ch. 190; Bonati v. Welsch, 24 N. Y. 157; Matter of Baker, 83 App. Div. 530; affd. on opinion below, 178 N. Y. 575.) The parties having been married in France, then the country of their domicile, the terms of their contract of marriage, with the resulting rights and obligations, were determined by the lex loci,contractus. (Bonati v. Welsch, supra.) The.law of France prescribes that in default of a special agreement the law of community prevails. By the French Civil Code (§ 1400 et seq.) the community consists of any personal property either spouse owned indi vid ually before the marriage and all personal- and real property acquired dining coverture, with certain exceptions not important here. In case of death of one of the spouses the assets of the community, after all debts are paid, are to be divided equally between the estate of the decedent and .the survivor, who receives his or her half of the property in his or her own right as part owner thereof, and not in succession to the deceased. Bonati v. Welsch (supra) dealt with a marriage 'contracted under such circumstances, and held that a wife whose husband had deserted her and had come to America, leaving-her behind in France, was entitled to share in the community property by virtue of the contract made between the parties by operation, of the French law. The. Supreme Court of the United States had before it a case arising under the Civil Code of *413Porto Rico, which is similar to the French Civil Code. Said the court: “ Between the husband and wife, by virtue of the marriage, in the absence of a contract to the contrary, a legal community supervened.” (Garzot v. De Dubio, 209 U. S. 299, 300.) In England it is well settled that the terms of the law are to be read into the marriage contract in the absence of an express agreement. In De Nichols v. Curlier (L. R. App. Cas. [1900] 21) Lord IIalsbury said : “ I am wholly unable to understand why the mere putting into writing the very same contract which the law created between them without any writing at all should bar the husband from altering the contract relations between himself and his wife, when, if the law creates that contract relation, then the husband is not barred from getting rid of the obligation which upon his marriage the law affixed to the transaction. * * * The French marriage confers not only an implied, but an actual binding partnership proprietary relation fixed by the law upon the persons of the spouses, the binding nature of which, it appears to me, no act of either of the parties contracting marriage can affect or qualify.” Commenting upon the foregoing decision, in considering another phase of the same litigation, Kekewtch, J., said: “ The decision proceeded on the broad principle that a contract operating by force of law in the absence of expression by the parties is as complete and obligatory as a contract expressed, and must have effect given to it on the same footing. Unless, therefore, there is some inherent disability in some particular property, * * * it must equally be applied to and enforced against all falling within its scope.” (De Nichols v. Curlier, L. R. 2 Ch. Div. [1900] 410.) It seems to me, therefore, that it must be held, both on reason and authority, that the contract which the parties entered into between themselves by their marriage included an agreement for community of property as confirmed by the laws of- France. If so, it could only be abrogated by mutual consent, of which there is no evidence. But it is said that the contract ceased to be operative when both parties assumed a domicile in this country. If so, it must be because á mutual revocation is to be presumed from the fact of a change of domicile. I am unablfe to see on what principle such a presumption can be arrived at. The general rule is that a contract made abroad, and legal where made, will be enforced here unless repugnant to, or inconsistent with, our own laws. A contract for community of *414property is neither inconsistent nor repugnant to our laws, bat, on tli^ contrary, similar contracts between our own, citizens are favored and have frequently been enforced. Snell a contract was well' likened by Kekewioh, J., to a copartnership. . It is well established that a copartnership may be created by parol, even to deal in real estate: If such a copartnership were cre-

ated and the real estate was held in the name of one of the parties, upon a dissolution of the partnership by his death it would hardly be claimed that the share or interest of the surviving .copartner passed to him by virtue of the intestate laws or was subject to a transfer tax: The analogy between that case and the

present seems to me to be complete. The .marriage contract between Majot and his wife respecting the ownership of the, community property was no different from any partnership contract between parties competent to contract. So long as it contravenes no law of this State, it should be recognized and respected.

In my'opinion the surrogate was right and his order should be affirmed. . .. ■

Clarke, J., concurred.

Order reverséd and order made upon appraisal affirmed, with '.costs to appellant. Settle order on notice.