78 N.Y.S. 491 | N.Y. App. Div. | 1902
Daniel A. Bullard died in April, 1901, at the age of 86 years and upwards. The case shows him to have been in vigorous health until within a few weeks of his demise. On February 5, 1898, over three years prior to his death, he gave to his daughter Helen F. Brisbin, one of the appellants, 120 shares of stock in the National Bank of Schuylerville, valued at $15,600, and to his grandson Charles E. Brisbin the same number of shares in the same bank. The certificates of stock for these shares, then held by deceased, were in writing on the back transferred to these donees at that time, and were delivered to the grandson Charles for himself and his mother, and these certificates were never afterwards .in the possession of the deceased. At the time of this transfer of the bank stock certificates, the deceased gave to another grandson, Daniel A. Bullard, 2d, 300-shares of the Ft. Miller Pulp & Paper Company, valued at $45,000. The certificates for these shares were in writing on the back, signed by the deceased at the time mentioned, and transferred and delivered-to the donee, and thereafter deceased never had possession thereof.
These gifts, under the circumstances disclosed, were gifts inter vivos and not causa mortis. They were irrevocable, and lack the distinctive qualities of gifts causa mortis. They took effect immediately, and not at the death of the donor. If the construction of the language of the statute, “in contemplation of death,” which is declared1 in Re Spaulding’s Estate, 49 App. Div. 541, 63 N. Y. Supp. 694, by a majority of a divided court, is the correct construction, the gifts in the case before us were not made “in contemplation of death.”' Nor does the case disclose facts sufficient to found a conclusion upon that they were made in bad faith, or with the intent of evading the transfer tax. On the question as to whether the gifts were absolute, and free from any trust to pay over the income during the life of the donor, and not incumbered with any enforceable reservation of the income arising after the date of such gifts, the facts of the case create a degree of doubt. No express contract is shown to support a trust or reservation. Nothing was said on the subject between the donor and donees at the time of the gifts. The subsequent action of all parties might imply that there existed an unexpressed understanding that the donor should have the earnings of the stock thereafter during his life, and should continue to hold office in the corporations-the same as before, while owner of the stock. He did receive the-dividends, and did remain president of the bank and director in the-pulp company. If such were the contracts entered into between the-
The decree of the surrogate should be affirmed, with costs. All concur except CHASE, J., who dissents.