Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D.
Patricia A. Lyons, executrix under the will of her father Thomas L. Hamilton, appeals from a transfer inheritance tax assessment determining that decedent's transfer to Patricia and her husband as tenants by the entirety was taxable one-half to Patricia at 1% and one-half to her husband at 11%.
On April 20, 1965 decedent transferred to Patricia and her husband the property in which they maintained a common household. Patricia, an only child, took care of her father until he died on September 19, 1967. In his will, dated September 10, 1963, he left all his property to Patricia, if she survived him, and named her executrix. He directed that all taxes be paid out of his general estate, to be treated as administration expenses.
Decedent's attorney, Cooper, states that decedent saw him on April 6, 1965 about a proposed conveyance of the property to his daughter. Cooper advised him that if he died within three years, the transfer for inheritance tax purposes would be presumed to have been made in contemplation of death. He also advised that for convenience in handling the title and to conform to the current practice, the husband's name should be included in the deed. The attorney explained the consequences of such a tenancy by the entirety, and this was further explained in his letter to decedent dated April 9, 1965. Decedent nevertheless proceeded to create a tenancy by the entirety in his April 20 deed.
Patricia and her husband sold the property for $25,000 immediately after decedent's death and before filing an inheritance tax return.
The executrix first argues that there is no provision in the Inheritance Tax Act which in specific terms imposes
a tax on a transfer of the kind here involved. Initially, it is to be observed that the transfer was certainly one intended to take effect in possession or enjoyment at or after death, and so is taxable under N.J.S.A. 54:34-1(c). This is so not only because the cited section raises such a presumption, but Patricia and her husband had agreed to take care of the father in the house they occupied, for as long as he lived. N.J.S.A. 54:34-2, as amended, fixes the rates of taxation, the rates varying with the identity of the transferee and the value of the property transferred. Thus, it provides that a transfer to a child of decedent is to be taxed at 1% on any amount in excess of $5,000 and up to $50,000, and a transfer to the husband of a daughter is to be taxed at 11% up to $1,100,000.
There can be no debate -- and there is none -- that the transfer on its face created a tenancy by the entirety. What appellant argues is that we should look at decedent's intent, and she spells out such intention by referring to (a) attorney Cooper's letter to decedent dated April 9, 1969 ("In connection with the transfer of the house to your daughter, which we discussed the other day," etc.); (b) the fact that the daughter's name appears before her husband's in the deed (this, it is argued, is quite unusual -- a departure from ordinary practice!); (c) the will (pre-dating the deed by more than 1 1/2 years) left everything to the daughter, and (d) Patricia (in a self-serving affidavit) alleged that her father told her she was the owner of the property.
All this is entirely unpersuasive. Were we to adopt the appellant's line of argument, no deed creating an estate by the entireties would be safe from similar attack. The deed is unambiguous on its face. There is the further thought that the deed was executed after full consultation with and advice by counsel.
The nature of an estate by the entirety was discussed by this court in Dorf v. Tuscarora Pipe Line Co., Ltd. , 48 N.J. Super. 26, 33-34 (1957), where it was described as one having the characteristics of a tenancy in common for the joint lives
of husband and wife, with remainder to the survivor in fee. Each spouse is entitled to half the income; either spouse's beneficial interest can be reached for the satisfaction of his (her) own creditors; a purchaser of one spouse's interest at execution sale becomes a tenant in common with the other spouse, subject to the nondebtor ...