Maria B. Starbuck died, a resident of Mount Vernon, Westchester county, on the 1st day of June, 1907- .On the 1st day of August, 1907, an order of the surrogate of Westchester county was made and- •. entered, appointing Michael J.- Walsh, Esq., appraiser'under the provisions of the Tax Law, as amended by chapter 368 of the Laws of-1905, relating to taxable transfers, and the amendments thereof and supplemental thereto. At the-time of her death Maria B.-Starbuck left surviving a husband, Gr. Ered Starbuck, and three infant sons as her heirs at law and next of kin. She died intestate, and letters of administration were issued to her husband-as administrator on the l'3thday of Juné, 1907. Included in the assets of the decedent’s estate was a one-third undivided interest in certain real estate at Mount Kisco, valued by the appraiser at $1,000, and a house and lot in Mount Vernon, appraised at $15,500. This latter property was subject to a mortgage, with- accrued interest, aggregating $4,428.57, leaving an equity, appraised at $11,071.43.. Decedent’s husband claimed' an, estate of curtesy in this real estate valued at $7,088,50; and that the value of such curtesy should be deducted from the net value-of such, real estate as an- exemption under the law. The appraiser,. declined to recognize this claim, and appraised the total value of the decedent’s estate, both real and personal at $19,503.39, fixing' the’ value of the husband’s curtesy at ( $7¿837,. upon winch lie allowed no exemption. On the 10th day of March, 1908, an order of the- surrogate was entered confirming said report of- the appraiser and assessing and affixing the tax in accordance therewith. Under this order the fair market value of the husband’s total interest *’ was assessed at $9,148.59, including the estate of curtesy, arid the-tax thereon was'fixed at $91:48. From this decree of the surrogate the administrator appealed, and on the 27th day of May, 1909, the surrogate made a decree allowing said appeal of the administrator' and ordering and adjudging “ that the value of the curtesy right, of GL Fred Starbuck, husband of said'Maria B. Starbuck, deceased, in and to her estate, amounting to Seven thousand eight hundred and • thirty-seven ($7,837) -Dollars be, and the’ same hereby is deducted from the sum total of the decedent’s personal and real estate.” By-the-same decree it was further provided that the balance Of the estate'being less than $10,000, .the estate was not-taxable, but- should *873be exempt and that the report of the tax appraiser should be modified in conformity with the terms of such decree, and that the order entered on said repo,rt levying a tax on the estate should be reversed. From this decree and order the State Comptroller has appealed to this court.
The single question presented upon this appeal .is whether the estate of curtesy which the husband takes in the undevised real property of which his wife died seized is taxable under the provisions of section 220 of the Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908), as amended by chapter 368 of the Laws of 1905 (since amd. by Laws of 1908, chap. 310, and revised into Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 220), relating to taxable transfers, which provides as follows: “ A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property, 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 while a resident of the State.”
The learned surrogate in an opinion (63 Misc. Rep. 156) seems to hold that the decedent’s husband, upon the birth alive of their issue, became vested with what was known to the common law as curtesy initiate, and that his wife, never having exercised the power to dis-' pose of her estate, the fight became consummate at her death, and related back to the birth of issue capable of inheriting the estate, so that in fact he was vested with his title to the property prior to her death, and it did not come to him under the intestate laws of the State. I am of the opinion that this is an erroneous view of the law. Under the common law, prior to the enactment of the laws for the enlargement of the rights of married women in 1848 and 1849 (Laws of 1848, chap. 200; Laws of 1849, chap. 375) whenever the wife,, at or during the marriage, was seized of an estate of inheritance, and had issue by her husband, born alive, and she "died before the husband, lie had the right to her estate during life. During that time, that is, during the husband’s life, after the death of the wife, his estate was called an estate by the curtesy. (Bingh. Real Estate, 654, and authorities there cited.) Prior to the death *874of the wife,- the husband immediately upon the marriage: bécame' entitled to tile possession and use of Iris wife's property, whenever she had any property held in her own right. Estates in land were riot ah exception to this rul'e, but were subject to the possession and control of the husband, and remained- so as long as the marriage relations continued. During'that time he became the tenant in the place of the wife, and the interests held by him in her estates of inheritance were regarded- as freehold estates in him, because he Alight thereby continue to '-be the tenant during liis natural life. The rents and profits were his. sole property; and thus, practically,' he was'the sole tenant for the time, so far as related to the possession of the premises, as completely as though he was the tenant in fee. If the husband died, first, the wife resumed her estate. ’ At the marriage, a,s we have Seen, as a part of the ‘ contract which the' daw Wrote into every marriage ceremony, the . husband'became entitled- to the possession and iise of his wife’s property, including the possession and income of real property during the continuance of the marriage relation; he was practically sole ténant,' bvit this condition lasted only during the marriage relation. -If the husband died, .the . wife resumed her estate, but if the.wife died the husband’s tenancy was at an end, unless it happened that during the marriage issue Were born to them capable of taking the estate. In that event the husband’s right to a tenancy by the curtesy became initiate, and at the death -of the wife it was consummate. In other words, the right of the husband to enjoy the estate of liis wife during marriage was prolonged during his natural life if issue capable of talcing was born during the marriage; the original right became vested at the marriage ; the right to a tenancy by the" curtesy became vested when issue capable of taking.was born. From that time the husband had not merely a tenancy during the life of liis. wife, but one continuing after her death and during his natural life, but lie did not enter upon the enjoyment óf this latter estate until -the -death of his wife. Before that time he was, under the fiction of the common ' law merging husband and wife, the. sole tenant of her real - estate, and his- estate of tenancy by the-curtesy did not begin, until the prior tenancy- was ended by the death of liis wife. He had a property right in the tenancy by the curtesy immediately on. the birth of issue capable of taking the property,-but his fight to pos*875session under such tenancy did not become consummated until the prior tenancy was terminated by the death of his wife (See Bingham on Real Estate, pp. 652 to 657, inclusive, with authorities cited), so that when the court in Hatfield v. Sneden (54 N. Y. 280, 287) declared that “ After sundry conflicting decisions the law has become substantially settled that while those acts [the acts to enlarge the rights of married women] excluded the husband during life from control of, or interference with, his wife’s separate real and personal estate, and gave to her alone the power of disposition by deed or will, yet they left the husband the right of curtesy in her real property and of administration for his own benefit of her personalty in so much as remained at her death undisposed of and nnbequeathed,” it undoubtedly stated the law as it existed at that time, but it did not hold or intimate that the right of curtesy remaining to the husband related back to the birth of issue capable of taking, and gave him a property right at that time. Tenancy by the curtesy never existed until the death of the wife; the right to it, at common law, became initiate at the birth alive of lawful issue, but when the Legislature gave to the wife the absolute control of her property during life it took away the property right which before came into being with the birth alive of lawful issue, and left the husband in a position where he had no rights whatever in her property unless at her death she had failed to dispose of the same. The birth of issue capable of taking was a condition which must exist to give the husband any rights as a tenant by the curtesy, but that event did not vest in him any legal rights in the property of the wife; it merely established a status which the wife might permit to grow into a right by failing to dispose of her separate estate; but this right, if it came into existence at all, dated, not from the birth of the child, but from the happening of the event which terminated her power to dispose of her property. When that event occurred, the rights of the husband depended upon the question of whether lawful issue had been born alive, but the death. of the wife did not relate back to the birth of the child and give the husband a property right as of that date, because the sole power over the property during the life of the wife was in her; she had a perfect right at any time, up to the moment of her death, to dispose of the property, and while the title to the property and the right to dispose of the same were in her, and these were not affected by the birth *876alive of lawful issue, there was nothing in the fact of the birth to which the subsequent death could relate. Upon’ the death of the wife the'relation back was to-the contract of marriáge; that contract, in effect, provided that the wife, as the owner of an estate^ should not be deprived of any of the rights in' her property which belonged to her as a single woman; she should continue, as a wife^ to have . and to hold her property subject to her own individual will, during' her life the same as though she had not married, with the right to' dispose of the same by deed dr will, and at her death, if' she'.had failed to dispose of the same, that it should gó to her heirs at law and ne.xt of kin, unless at some time during the marriage relation issue had been born alive to them, in which event the husband was to have a tenancy by curtesy. That was in' effect the contract which was entered into between parties contracting a marriage after the adoption of the statutes of 1848 and 1849; and as the birth alive of lawful issue did not initiate any right in the husband, upon the'death of the wife a new right, growing out of the contractof marriage,, came in to being, and it could not and did not relate back and vest rights in ,th¿ husband to' which he had ño legal or equitable claims before. Equity sometimes makes its decrees relate back to undo a wrong, but it is a new doctrine that a right growing out of- a particular contract can be made to relate back and; give .rights' where no such right could have existed, for the purpose of avoiding the effects of a statute designed to produce the public revenues. Moreover, tenancy by the curtesy is not a new estate; it is merely a part of an estate which the -law, under certain circumstances, assigns to the husband, while leaving to the heirs or devisees of the deceased wife .the remainder, subject to the usé. ■ It is in this respect not to be distinguished from the dower rights of a widow. Speaking of this, right, Bingham on Beal Estate :(p. 601) says: “ By some of the text writers it is classed among the life estates, and is said tó be created by operation of law. It is true that the widow’s right of dower is ■limited to the period of her natural life; but it is not true that her right is-an integral estate, like an estate for life created-by a lease. It is no new estate, but only a part of an .estate, which the law,, in certain contingencies, assigns to the widow, while it leayes the remainder to the heirs or devisees of the deceased husband, in case he dies seized, and to his assignees when he had assigned before his • *877death. It is the division of an estate in fee by operation of law, and not the creation of a new estate by such operation. An estate, as before shown, is always' the result of a contract, and cannot be created by operation of law. The law sometimes supplies certain provisions to a contract, and gives to them the same force as though they were expressed in the contract itself, but it makes no contracts for individuals. It frequently divides, but never makes an estate.” If I am right in the conclusions so far reached, it follows that the real estate of Mrs. Starbuck 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, witli 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 possession, 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. To say that this right of curtesy did not pass to Mr. Starbuck under the intestate laws of this State is contrary to reason and contrary to law. This is plainly manifest when we turn to section 242 of the Tax Law (Gen. Laws, chap. 24 [Laws of 1896, chap. 908], as amd. by Laws of 1905, chap. 368), which is now revised in section 243 of the present Tax Law (Consol. Laws, chap; 60; Laws of 1909, chap. 62), and read the definitions there given. These are not strictly in line with the definition of “ transfer ” as made by the Court of Appeals in Matter of Gould (156 N. Y. 423, 427, 428), where an entirely different question was at issue, and the court did not pretend to quote the statute definition. In the section cited the statute defines the words “ estate ” and “ property ” 'and declares that they “ shall be taken to mean the property or interest therein of the testator, in tes*878tate, grantor, bargainor or .vendor, passing or transferred to those not herein specifically exempted from the provisions of this article, ■and not as the property or interest .therein passing or "transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property or interest therein, whether situated within or without this State,” and that •“ the Word ‘ transfer,’ as used in this article, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein prescribed.” That is, the word “ property ” used in section 220 relates to the property of Mrs. Starbuck at the time of her death ; it is the property of which she died seized, and which was transferred by operation of the intestate laws of this State,‘and the meaning of the word “transfer,” as Used in that section, includes “ the passing of property ” as thus defined, “ or any interest therein in possession or enjoyment, present' or future, by inheritance,” etc. It is'a.tax upon the transferring — the passing of tlié property of the deceased under the intestate laws of this State, just as much as the fee parsed to the heirs- at law. The tax is levied, not upon the property, but upon the right of succession, and the estate of the deceased, which passes, with. “ any ■ interest therein in possession or enjoyment ” determines the amount of the tax and the question of exemptions. The estate as a Whole, as “estate” is defined in the act, is the estate which-is to be considered, not the estates which vest in those who are to take, and ¿6 the decedent’s estate which passed to her heirs "at law, with a present-right of possession in the husband, exceeded $10,000, it was not exempt under the law.*
■ The decree appealed from should be reversed, and the decree affirming the. report of the appraiser assessing and fixing the tax upon the decedent’s estate should be affirmed.
Decree of the Surrogate’s' Court of Westchester county affirmed, With costs.' . . . ■
See Tax Law (Den. Laws, chap. 24;, Laws of 1896, chap. 908), §§ 220, 221, as respectively amd. by Laws of 1905, chap.. 368, and Laws of 1907, chap. 204; since amd. by Laws of 1908, chap. 310, and revised into Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap.'62),- §§ 220, 221.—[Rep. .. ' ' '