Is an estate by the curtesy taxable under chapter 368 of the Laws of 1905, and amendatory acts relating to taxable transfers ? Section ■220,* so far as here pertinent, provides for a tax upon the “ transfer of any property * * * or of any interest therein or income therefrom, in trust, or otherwise, to persons * * * in the following cases: 1. When the transfer is by will or by the intestate laws of this State from any person dying seized or possessed of the property.” The words “ intestate laws ” refer to the statutes -governing the descent and distribution of a decedent’s property. Section 280 of the Real Property Law,† in force when chapter 368 was enacted, provided : “ This article [the one relating to descent] does not affect * * * tenancy by the curtesy or dower.” That statute is the law’s will for the disposition of property when its owner dies.without a will. Upon inspection to discover .what interests it transfers, it is found that it does not transfer an estate by the curtesy, but disclaims any effect upon such an estate. That is, it leaves it untouched as a matter that does not concern it. Hence the taxing statute does not include it. But the pith of the opposite view is best expressed by Woodwaed, J.: “the-real estate” of the decedent “ was transferred as a whole under the intestate laws of this State; the title vested in her heirs at law, subject to the tenancy by the curtesy of Mr. Starbuck, under the provisions of the marriage contract. There was no new estate created at any time. At the moment of Mrs. Starbuck’s death there was one estate — one distinct entity — and that estate passed, by operation of law, to the heirs at law, with the immediate right of possession in Mr. Starbuck. His right to possession is merely a part of. the estate of which Mrs. Starbuck died seized, and it all passed under the operation of the intestate laws of' this State. ■ The right to posses*868sion, the tenancy by curtesy, could not exist except' for the fact that the tangible property, passed to the heirs Under the- provisions of the intestate laws of this State; it is a right in subordination of the title, an incident of the intestacy of Mrs. Starbuck, and it has no existence except as it is a part of the estate which she owned and possessed at the instant of her death.” I cannot conceive that at Mrs. Starbuck’s death one distinct entity—one whole estate — passed, by operation of law, to ,the heirs at law, with immediate right- of possession in Mr. Starbuck. An estate of inheritance passed to the heirs, but the law subjected it to an estate for life in Mr. Starbuck. The heirs no more took tangible property than did Starbuck, and their estate was-subordinated in en joyment to Ms, not his tó their estate, save as the quantity of a life estate is inferior to the quantity of an estate of inheritance.' But the essential inquiry is from what source did his estate come ?. Certainly not from the transfer to the heirs of the fee subject to his life.estate. He did not inherit as' the heir of his wife an estate by the curtesy of -, any other estate. He was not her heir. Ho recognized law. of intestacy can be invoked that in the slightest degree indicates such a transfer or such relation. The contrary has been stated by this court. (Matter of Winne, 2 Bans. 23.) Later I will instance the existence of curtesy since the -statute of 1848, where nobody could ■inherit from the wife. But keeping to the point under present discussion, the truth is that the heirs’ taking' Was concurrent with his taking, but not the cause of it. If they had not received their estate he- would not have received the life estate. That is, if she had not died intestate, neither would have taken. Her intestacy was the condition of his taking, but not the source of liis -estate.. The heirs took by reason of her intestacy and traced title through the statute of descent. He could even convey, and his grantee-claim in hostility to their..title. (Christie v. Gage, 71 N. Y. 189, 193.) He took title upon her death .intestate, but not by a transfer thereby created. ■ From the fact that she did not devise it arises the fact that his right ■ to take was'not destroyed. She was capable of forestalling and preventing an estate, but could not make such estate. She simply did not preclude the operation of law .that matured it upon her death. But when one seeks for any act on her part it cannot be found. His estate did not spring from her forbearance. He is indebted td ' *869such forbearance for obtaining what the law provides for him, but nothing more. There is no more mystery about the source of this estate than existed before the passage of the Married Women’s Acts, arid there is no suggestion in any ruling decision that the husband’s interest was changed in nature ,or derivation on account of such acts. The authoritative decisions are that the acts of 1848 and 1849 have not interfered with nor affected the husband’s estate in his wife’s real' property, if not disposed of by her either during life, or by will. (Hatfield v. Sneden, 54 N. Y. 280; Burke v. Valentine, 52 Barb. 412; affd., [Ct. App.] 6 Alb. L. J. 167; Ransom v. Nichols, 22 N. Y. 110; Barnes v. Underwood, 47 id. 351; Leach v. Leach, 21 Hun, 381.) So whatever its nature was it is; from whatever it formerly sprung it at present arises. The estate by the curtesy is in part dependent upon the birth alive of issue capable of inheriting, but not of issue who in fact inherit. Indeed it is immaterial that they die before the wife is seized. The wife might die without heirs of her body, or indeed any heirs, and the land escheat to the State, but curtesy would remain. She must have an estate of inheritance, and must die at some time seized of it, otherwise she could not have issue capable, if living, of inheriting it. There was some old learning suggested in Matter of Winne (2 Bans. 21), that the husband’s estate is a continuance of the wife’s estate. This is the reverse of transfer from her. It implies no transfer. The estate arises from the marriage relation. It is “ an estate by favor of the law of England ” (2 P. Wins. 703). Upon the death of the wife, the law adjudges the freehold to be in the husband immediately, as tenant by the curtesy ( Witham v. Perkins, 2 Greenl. 400; Cruise Dig. [Greenl. ed.] 161), where it is said, citing Paine's Gase (8 Pep. 36a), that “the tenant by the curtesy shall be attendant on the lord paramount for the services due in respect of the lands that he holds by this title.” This old. doctrine that tenancy by the curtesy is created by the law is the modern exposition. (Reeves’ Real Property, 88; Adair v. Lott, 3 Hill, 182.) Indeed, it is not controverted. Its origin and continuance are due to. the law, but not the law that appoints the inheritable property of an intestate to prescribed heirs. It is unimportant in the present inquiry upon what theory, adopted at remote time and now obscure in motive, the law proceeded in making this transfer to the husband. *870It 'is only necessary to establish that it was not and is not' an intestate law. . As already noticed, the acts of 1848 and 1849 left intact every feature of this'estate except ás they.gave the wife, ability to defeat it if her estate should permit such defeasance. If • she did not do an act in defeasance the former estate, not some new estate, existed in full right at lief death. I iiud no reason ■ for the suggestion that this ancient estate, the only one the' law gives to a husband in the real property of his wife, honored through’ so many centuries,, pronounced by our highest' court as surviving, though'made uncertain of enjoyment by the acts, of 1848 et seq., should be regarded as an incident to the wife’s, death and intestacy, that is, as something dependent tliereon, hence originating therein, and so falling under the statutes of descent. Before the acts of 1848 and 1849 the law caused the estate to progress to completion through marriage, birth, of heirs, seizin of wife and her death.. The only' change is that, unless she have a base or determinable fee,'she must die seized, and without alienation by deed or will, to permit the estate to vest. The suggestion that the husband’s estate is an incident to her. death and intestacy, that is, dependent upon them, is true only in the sense that the estate is limited .to vest upon the happening of such events. It is not unusual that an estate should be- limited or conditioned on the death of a person, intestate or otherwise, and in' that sense the estate is dependent upon the named events, but the events are not causative. An estate may be given with power of appointment, but' no one would ascribe the creation of the estate to the first taker, . because he failed to exercise his power to alienate it, and siiffered it to go as directed in case of sticli'failure.' So the law gave-Mrs. Star-buck power to alienate and thereby defeat the estate by the curtesy, but her sufferance was not creative of the estate. Passivity is not a creative agency. The husband’s estate is contingent upon the omission" of the wife to dispose of her property. (Matter of Clark, 40 Hun, 233, 237.)
It is contended that curtesy initiate cannot exist, and that the husband has a mere status or possibility. Such was the decision in'" Collins v. Russell (96 App. Div.137) where, however, the court said thatfthe common law “ still governs tenancy by the curtesy,” and *871Albany County Savings Bank v. McCarty (149 N. Y. 85), What then ? Does it follow that when the husband does have such estate in right and enjoyment it is because he inherited it from her as if he were her heir .? That seems a non sequitur. In her life it did not rise to the dignity of an estate. At her death it. did. Why ? Because she did not exercise her power of disposition and defeat it. The learned counsel for the appellant argues that curtesy initiate requires the husband’s seizin through coverture; that the wife’s death first gives him seizin, and the husband receives her estate by her death intestate; that is, he takes his entire seizin at that time, and at that time only; at that time only the estate is transferred to him. But the question remains, transferred by whom or by what ? According to plaintiff’s contention he could take his curtesy only by her intestacy. But undoubtedly he can and does. In Hatfield v. Sneden (supra) the wife had a fee determinable upon two events, the failure of her son to return and her death without a child surviving, and upon these happening a limitation over in the nature of an executory devise. She .died, and the fee went over, but the husband took his curtesy. He did not take it by her death intestate, for nothing descended from her. It was one branch of the discussion that she could preferably have taken as heir at law of the testatrix, but this argument was used to reinforce the holding that the husband took his estate in any case. He had not curtesy initiate. Her intestacy, had no possible effect, and yet his estate i arose. But the court perceived clearly the source of the estate, for the opinion quotes the words of Lord Coke : “ The husband’s estate shall continue, for it is not derived merely out of the estate of the wife, but is created by law, * * * by the privilege and benefit of the law tacite annexed to the gift.” A statute is not enlarged to take in objects not included by its terms. If the Legislature has inadvertently omitted property that should be taxed, it should correct its error. Meanwhile it is the duty of the courts to observe settled legal conceptions. So the law preserves its symmetry.
I think that the surrogate (63 Misc. Rep. 156) stated correctly the principles, and that the decree should be affirmed.
Hirsohberg, P. J., Rich and Care, JJ., concurredWoodward, J., read for reversal.
See Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908), § 220, as amd. by Laws of 1905, chap. 368; since amd. by Laws of 1908, chap. 310, and revised into Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), § 220.— [Rep.
See Gen. Laws, chap. 46 (Laws of 1896, chap. 547), § 280.— [Rep.