228 A.D. 56 | N.Y. App. Div. | 1930
The decree appealed from determines that the testator, James C. Brady, did not in his lifetime make a gift inter vivos of 10,000 shares of stock of Brady Security and Realty.Corporation to his wife, Helen McMahon Brady, and his five minor children; that the stock is all a part of decedent’s estate.
The verified petition in the proceeding, instituted by the executors, alleged that the decedent had given all his stock to his wife and children in 1923, over four years before his death and prayed that the surrogate determine that the estate has no interest in the stock. All parties in interest were cited. Only the State Tax Department opposed, claiming the stock to be a part of decedent’s estate and taxable under the Transfer Tax Law.
The evidence is undisputed and apparently the surrogate has given full credence to it, because in his decree he states “ that the evidence, full credence being given thereto, is insufficient to show ” gifts inter vivos.
This, in substance, is the undisputed testimony: In April, 1923, decedent caused the Brady Security and Realty Corporation to
It is not uncommon for a donee to intrust the donor with possession of the thing given, particularly between child and father or
We do not see what other necessary act the donor could have done to make the transfer and delivery more complete than it was, considering the situation of the parties and the possible necessities of the corporation, the entire capital stock of which was involved in the transaction. Mr. Griffin testified: “ Mr. Brady told me that he had called the children together, explained the nature of the Brady
Even the executors of decedent’s estate are satisfied that the property does not belong to the estate and so allege in the petition. Mr. Griffin is one of the executors. He was intimately acquainted with the history of the transactions and as executor he may easily have acquired further knowledge which would enable him to form an opinion and to make an admission. Admissions by executors made while in line of duty are admissible and should have due weight. (Breese v. Graves, 67 App. Div. 327; Crouse v. Judson, 41 Misc. 341.) The evidence is clear and convincing that gifts inter vivos were intended and were consummated. The surrogate has not rejected the undisputed testimony. We see no reason to reject any of it. We see nothing in the facts and circumstances which justify us in drawing implications in conflict with the positive testimony. The only party opposing is the State Tax
The decree of the surrogate should be reversed on the law and the facts, with costs of this appeal to all parties filing briefs, payable out of the estate, and matter remitted to the Surrogate’s Court with directions to enter a decree in accordance with this opinion, with costs in Surrogate’s Court in the discretion of the surrogate.
Van Kirk, P. J., Whitmyer, Hill and Hasbrouck, JJ., concur.
Decree reversed on the law and facts, with costs of this appeal to all parties filing briefs, payable out of the estate, and matter remitted to Surrogate’s Court wdth directions to enter a decree in accordance with opinion, with costs in Surrogate’s Court in the discretion of the surrogate.
This court finds that in September, 1923, James Cox Brády made a gift inter vivos of the 10,000 shares of the stock of the Brady Security and Realty Corporation to his wife and his five children, severally,' and that said shares of stock are not part of his estate.
Findings and order to be settled before Mr. Justice Hinman on five days’ notice.