73 N.Y.S. 818 | N.Y. App. Div. | 1901
Lead Opinion
On the 20th day of April, 1899, J. Albert Mahlstedt died, leaving a last will and testament, which was duly admitted to probate, dis
Passing over the technical objection, that there is no determination whether the transfer was made in contemplation of death, or to
It may be that the transfer of the property was made in contemplation of death, in the sense that many men who have accumulated-property make some disposition of it in contemplation of the fact that they must die at some time, but the fact that Mr. Mahlstedt retained one share of the stock, which could be of no possible use to him as property if he was about to die, and'which would pass by the will he had just executed to his wife, seems to us strong evidence that he did not believe that he was going to die of his present illness, but that he expected to live and wanted to retain his right to vote in the corporation, perhaps as a mere matter of sentiment. The fact that he did die within about three weeks of the transfer,
.There is no evidence of an intention on the part of Mr. Mahlstedt to transfer this property for the purpose of defeating the transfer tax. It is undisputed that he retained a share of the stock on purpose to hold a position in the company, a thing entirely inconsistent with the theory that he contemplated his own death in the transaction, while his talk about going on a vacation at the very time that he gave the instructions for the transfer, coupled with his declaration that it would enable his wife to transact the business, furnishes affirmative evidence that his own death was not in mind in making the transfer. The fact that he made a will on the same day is not evidence of the contemplation of death, except as a remote contingency, and cannot overcome the legitimate presumptions and the positive evidence in support of the appellant’s theory that the transfer was made for the purpose of vesting the property in his wife so that she should be able to take his place in the management of the business.
The order appealed from should be reversed, with costs.
Goodbioh, P. J., and Sewell, J., concurred ; Jenks, J., read for affirmance; Hibschbebg, J., not voting.
Dissenting Opinion
I dissent. When Mr. Mahlstedt made the assignment he lay upon his sick bed, so ill that his physician was calling upon him eight times a day, was attending throughout the nights and had called in Dr. Janeway for consultation. After the physician had advised the patient “ to put his worldly affairs in shape ” the patient sent for his attorney, who was permitted by the physician to see the client. Thereafter and upon the same day Mr. Mahlstedt executed his will, making his wife the solé beneficiary, and made the assignment to her of 559 shares of stock out of his holdings of 560 shares. At this time Mr. Mahlstedt was so weak that, though he subscribed his will, it was suggested that he could make his mark to the assign
It is hardly to be expected- that in transactions of this character positive proof can be given that the transaction was within the purview of the statute. The taxing power is not party to the transaction, and it is almost necessarily compelled to rely upon the attendant facts and circumstances which it may subsequently elicit, and the conclusions that may fairly be drawn therefrom. I think that the considerations discussed in the prevailing opinion are not sufficient to shake the conclusion that the act was within the purview of the statute, and that the decree should be affirmed. It is entirely true that but for the execution of the assignment the stock would have passed to Mrs. Mahlstedt (the assignee) as sole legatee under the will. But in that event the stock, being worth by the inventory $56,000,, would have been subject to a tax. (Laws of 1896, chap. 908, § 221, as amd. by Laws of 1901, chap. 458.) On the other hand, if it could be made to appear that the assignment was not made in contemplation of death, or was not intended to take effect after death, then the stock escaped the tax. May not this consideration have suggested the policy of an assignment? If the assignor intended to avoid a tax, was it not natural that he should seek to color the transaction with the appearance of an act neither done in contemplation of death nor intended to take effect after death ? If this were the purpose might not the retention of a single share afford, as it has afforded, an argument that the assignor in retaining an interest, infinitesimal though it might be, did not contemplate death ? So far as Mr. Mahlstedt’s statements are concerned, though his clerk testifies that Mr. Mahlstedt said to him that his physician had advised that he should go on a vacation, I cannot find that the physician confirmed this statement or that he testified that he gave other advice than that the patient should “ put his worldly affairs in shape.” As to the acceptance of the assignment by Mrs. Mahlstedt and her domination over the property of the corporation, it appears that her brother-in-law, an officer of the corporation, testified that the trans
Decree of the Surrogate’s Court of Westchester county reversed, with costs, and proceedings remitted to the surrogate for disposition in accordance with the prevailing opinion.