35 A.D. 125 | N.Y. App. Div. | 1898
On the 15th of April, 1893, Erastus S. Edgerton, a resident of this State, died intestate at Franklin, in the county of Delaware. He left a widow and two sisters and a nephew and two nieces, the children of a deceased brother, as his only heirs and next of kin. -He had been doing business in the State of Minnesota and some of •his property was there and -letters of administration upon his estate
He transferred stocks .of the estimated value of $78,035 to his sister, Mary J. Monfort, taking back from her and her husband, Delos A. Monfort, a joint and several bond in the penal sum of $156,000, dated March 31,1888. This was conditioned for the performance of the agreements therein stated, and there was a recital that the obligee had transferred or was about to transfer to said Mary J. Monfort for her own use and benefit certain securities, a list of which was attached in a schedule, with a valuation in the aggregate as above stated. The obligors thereby agreed to pay or cause to be paid to said Erastus S. Edgerton the sum of $5,500 per annum during his life, the sum of $2,750 to be paid on the tenth of July then next and a like sum every six months thereafter. The obligors agreed “ to deposit as collateral security for the performance of this agreement the said securities or the certificates or other evidence thereof that may be received by the undersigned, the said Mary J. Monfort, or such other securities as may be approved of by the said Erastus S. Edgerton, in lieu of the whole' or any part thereof, the same to be deposited with The Saint Paul Trust Company, of Saint Paul, Minnesota, and to remain so deposited with the said Trust company until the death of the said Erastus S. Edgerton, when the undersigned, Mary. J. Monfort, or her executors, administrators or assigns shall be entitled to the delivery of the same by the said Trust Company.” In case the obligors failed to make any payment for a period of sixty days after it became due, then the trust company was authorized to collect dividends on the securities until sufficient should have been collected to pay the amount due, or upon reasonable notice to both parties sell such portion of the securities as might be necessary to realize a sum sufficient to pay such amount and then pay the same to said obligee. The obligors agreed on behalf of themselves and their respective executors, administrators and assigns to deposit and keep deposited with the trust company such powers
Mr. Edgerton also transferred to his sister, Mrs. Monfort, other stocks, of the value then of about $50,000, taking from her and her husband a bond in the penal sum of $100,000, dated March 31,1888. This provided for the payment to Eliza O. Edgerton, the wife of Erastus S. Edgerton, of the sum of $3,000 per annum during her life, with provision for deposit of collateral security until the death of said Eliza, and in other respects the bond was similar to the one Erst above described.
A similar transfer was made by Mr. Edgerton to his sister, Elizabeth E. Wilcox, of stocks of the value of about $47,500, a bond being given back by Mrs. Wilcox in the penal sum $95,000, conditioned for the payment of an annuity to Mr. Edgerton of $2,800 during his life, and containing other provisions similar to the bond Erst described.
A similar transfer was made by Mr. Edgerton to his nephew, Erastus D. Edgerton, and his nieces, Helen E. Edgerton and Mary A. Edgerton, of stocks of the estimated value of $78,375, and a joint and several bond given back in the penal sum of $156,000. conditioned for the payment of $5,500 per annum to said Erastus S. Edgerton during his life, and containing other provisions in like form as in the bond first described. A similar transfer was made "to these parties of stocks of the value of about $50,000, and a bond taken back for the payment of an annuity of $3,000 to Mrs. Eliza •G. Edgerton during her life, containing conditions like the one given for a like annuity, and above referred to.
At the same daté a joint and several bond was given by Delos A. and Mary J. Monfort, Erastus D., Helen E. and Mary A. Edgerton to Erastus S. Edgerton in the penal sum of $5,500, conditioned for the payment of annuities to three named persons during their respective lives. These annuities amounted in the aggregate to $500 .a year, and were to an uncle, an aunt and a cousin of said Erastus S. Edgerton. No transfer or a special consideration for this bond •appears.
The claim on behalf of the county treasurer is that all these transfers were taxable. The Surrogate’s Court held to the contrary.
It appears that Mr. Edgerton had other property to the amount of about $40,000 or upwards, some of which was thereafter disposed of and transferred by him during his lifetime, and the balance came, to the hands of his administrator. In 1888 he was of the age of seventy-two years, and his wife was of the age of sixty-eight years. He was not in good health, though he was then recovering from an illness. He had made a will which seems to have been destroyed at or after the transactions of 1888. He was evidently desirous of getting rid of the care of the greater part of the property, and took this' method of doing so, and still securing to himself an abundant provision for the needs of himself and wife during their lives.
By chapter 713 of the Laws of 1887, which was in force when:
It is argued by the appellants that the act of 1892 is applicable, and that the transfers in question were made in contemplation of the death of the transferrer, and, therefore, within the provision of that act above quoted. That provision was under consideration in: Matter of Seaman (147 N. Y. 69, 76) and was construed to refer to-grants or gifts eausa mortis. The transfers here in question were not such gifts or grants, for there was no power of revocation. (Doty v. Willson, 47 N. Y. 585; 2 Kent Com. 444; Bliss v. Fosdick, 86 Hun, 162, 173; 151 N. Y. 625.) In no event was Mr. Edgerton entitled to revoke the transfers or resume the title. He was entitled to the annuities; he could, if necessary, cause a sale of the stock to pay any annuity unpaid, and that was the encl of his right.
Whichever statute, that of 1887 or of 1892, is deemed to control the case, the question is whether these transfers were intended to take effect in possession or enjoyment at or after the death of the transferrer, within the meaning of the law.
It appears that the certificates of stock held by Mr. Edgerton were assigned by him to the respective transferees, and by them surrendered to the respective corporations and new certificates issued in the names of the respective transferees. These certificates, together with powers of attorney, were deposited with the trust company as required by the bonds and for the purposes therein mentioned. The transferees, however, received the dividends on the stocks and voted thereon. In case of the transfers to Mrs. Mon-fort and to Erastus D. Edgerton and his sisters, the annuities in fact
The obligors in the bonds were liable for the annuities whether or not there were any dividends, and although the stocks might become worthless. The title of the stocks vested in the transferees for their own use and benefit according to the recital in the bonds. In performance of their obligations, they deposited with the trust company the certificates as collateral security. Subject to the contingency that would give the trust company the right to exercise its power, their interest was assignable and would in case of death pass to their representatives. The power to the trust company was in the nature of an incumbrance.
It is hardly claimed that a gift irnter vivos, or an advancement simply, would be within the provisions of the law. . There would be no succession to title at or after the death. (Matter of Swift, 137 N. Y. 77; Matter of Hoffman, 143 id. 327.) The title would in such a case have passed absolutely before the death in possession and enjoyment. It is, however, argued in the present case that the circumstance that provision was made for the deposit of the certificates as “collateral security, changed the situation and indicated an intention that the transfers should not take effect in possession and enjoyment until the death. In fact, the transfers from the time of their delivery did take effect in possession and enjoyment, and there was no provision for disturbing such possession or enjoyment unless the obligors failed to perform their agreements, and then only to the •extent necessary to enforce payment of the debts of the obligors. Nothing further was necessary to be done by the grantor or donor to complete the title of the transferees.
It may be observed that in case of the transfers connected with the bonds given for the benefit of Mrs. Edgerton, the right to hold as collateral security ended with the life of Mrs. Edgerton.
The transfers here, aside from the trust deed as' to the monument, were, I think, intended to take effect in possession and enjoyment at the time they were made and, therefore, were not within the statute. It can hardly be said there was an attempt to evade the law, inas
No particular point seems to be made as to the provision for a monument and care of a burial lot. Assuming that the transfer covered by that instrument would not be deemed to take effect in possession as to the proceeds of the sale of the stock therein mentioned until the death of Mr. Edgerton, still the provision for a monument is considered a part of funeral expenses and so not subject to the tax as ordinarily understood. (Estate of Millward, 6 Misc. Rep. 425.) A bequest for maintenance of the decedent’s burial lot has been held to be exempt as funeral expenses. (In re Vinot's Estate, 7 N. Y. Supp. 517.) It appears that the value of the securities covered by the trust deed did not exceed $12,000; that $10,000 was in fact expended for a monument as therein provided and $2,000 paid over to the cemetery association therein named for the purposes therein expressed. This was probably exempt under the provisions of section 10 of chapter 133 of the Laws of '1847, as amended by chapter 31 of the Laws of 1877. (Matter of Herr, 55 Hun, 167.)
I find no good ground for disturbing the conclusion of the Surrogate’s Court, and its order and decree should be affirmed.
All concurred.
Order and decree affirmed, with costs.