169 N.Y. 437 | NY | 1902
On January 2d 1893, George A. Brandreth (who died on November 15th, 1897) transferred to his four daughters eleven shares of the capital stock of the Porous Plaster Company, a domestic corporation, of the par value of $5,000 each. On the same day his daughters executed, acknowledged and delivered to said Brandreth an instrument which recited that Brandreth had transferred the stock "upon condition that he is to receive all dividends declared upon said stock for the term of his life, and also upon condition that he has the right to vote upon the stock the same as though no transfer had been made," and directed said company to allow said Brandreth to vote on the stock and also to pay him all dividends that might be declared thereon. It was provided: "This agreement is not to be revocable by any or all of us, but to continue in full force until the death of the said George A. Brandreth. And the death of any or all of us before the death of said George A. Brandreth is not to act as a revocation of this instrument, it being our intent and object to secure to him the dividends on said stock until his death, and also the right to vote on said stock. This agreement is to bind ourselves, our executors, administrators and assigns." On the 13th day of January, 1893, an agreement was made by all the stockholders of the company whereby they transferred the stock to three trustees to hold the same during two specified lives and to pay the dividends to the persons theretofore holding the stock or their successors in interest, and upon the termination of the trust to transfer the stock itself to such persons. The appraiser and the surrogate held that the stock so transferred by Brandreth to his children was subject to tax under the provisions of article 10 of the Tax Law. The Appellate Division by a divided court reached a contrary conclusion and reversed the decree of the surrogate in this respect. *Page 440
The order of the Appellate Division does not recite that the reversal was on the facts and, therefore, it must be assumed that it was made solely on the law, the facts as found below being undisturbed provided there is any evidence to sustain them. (Code Civil Pro. § 1338; Wetmore v. Wetmore,
By subdivision
I have not referred to the details of the agreement by which the whole stock of the company was transferred to trustees, since we all think that the agreement created only a voting trust, and did not affect the rights of Mr. Brandreth and his daughters as between themselves. Further, the transfer became subject to taxation, if at all, when it was made, and no subsequent transfers made by the parties could relieve it from such liability.
The order of the Appellate Division should be reversed and that of the Surrogate's Court affirmed, with costs in all the courts.
PARKER, Ch. J., O'BRIEN and BARTLETT, JJ., concur; GRAY, HAIGHT and WERNER, JJ., dissent.
Order reversed, etc.