2 Mills Surr. 390 | N.Y. Sur. Ct. | 1901
— This is an appeal by the executors of the last will and testament of John P. Sharer, deceased, from the report of the transfer tax appraiser fixing, assessing and determining the transfer tax upon the property of the above named deceased.
I think the evidence taken under objection, of declaration made by the deceased, was not competent, and in arriving at a decision herein, such evidence may be deemed eliminated from the record, and is disregarded accordingly.
I have considered the ease carefully and am convinced that, the deceased never intended to and in law did not part absolutely with his bank stock, railroad stock, certificates of deposit, the Neller and Daily mortgages and the real estate mentioned.
It is true that he signed certain papers which if delivered in good faith and followed by a change of possession and acts of ownership on the part of the transferee would be good and effectual to carry absolute and title away from him; but to all the world after the date of the alleged delivery he continued to> be and remain the owner of the property as before; the property was not within the reach of either Margaret or Julia Caldwell when it went to Sharer’s private box at the bank; he received the income from it and so far as can be determined, treated it as his own; he still exercised dominion over it and did. not permit the transfer to take effect so far as the use or control of the property was concerned during his life.
Whatever may be alleged as to the legality of the execution of the papers and the alleged subsequent delivery thereof, yet the property was so managed and such management acquiesced in by the parties that the transfer if any took effect after Sharer’s death.
If a gift were claimed then it can be surely asserted that the supposed donor retained the property under his control and it was within his power to such an extent as to invalidate the gift theory; if a grant or transfer, then the property was retained and controlled by the grantor during his life and never actually took potential effect until after his death.
I see no reason to disturb the report as returned by the appraiser, therefore, I have affirmed the same and a decree may be entered accordingly; but the 10 per cent, interest on the tax should not be allowed during the time that the proceeding has been in litigation.
Decree affirmed.
