4 N.J. Misc. 692 | N.J. | 1926
This case was submitted at the May term, 1935, and was decided in an opinion filed October 30th, 1935, and reported unofficially in 3 N. J. Mis. R. 1107. Subsequently, a petition for a reargument was filed. A reargument was granted for the reason that the opinion incorrectly- stated a date. This was the date upon which the decedent, Henry F. Kunhardt, had the first attack of angina pectoris from which ailment he subsequently died. In the opinion filed, the date of the first attack was given as October 5th, 1933. It should have been stated that the first attack occurred on October 19th,
The deduction made in the opinion based on the execution of the deed subsequent to the first attack was unwarranted. The case was resubmitted at the January term, 1926. We have re-examined the case. The facts, with the exception of the date mentioned, are correctly stated in the former opinion so they will not be restated. Our re-examination of the case has resulted in reaching the same conclusion we formerly reached, namely, that the tax imposed by the state should be affirmed.
In the former opinion attention was called to the amendment of the act taxing the transfer of estates made by chapter 174 of the laws of 1922. This amendment provides that: “Every transfer by deed, grant, bargain, sale or gift, made within two years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall, in the absence of proof to the contrary, be deemed to have been made in contemplation of death within the meaning of this section.” This provision places the burden of proving that the act of transfer made by Mr. Kunhardt and comprising property in this state valued at $437,799.02 out of a total net estate of $450,673.66, nine days before his death, was not made by him in contemplation of death. Have the prosecutors met the burden east upon them by this provision of the statute? They contend they have. They first call the court’s attention to that portion of the affidavit of Mrs. Kunhardt which states that the execution of the deed of trust, as well as the
It is secondly contended that the purpose of the deed of trust was the proper investment of a large fund and not a final disposition of Mr. Kunhardt’s estate. This contention is met by an inspection and comparison of the deed of trust and the will of Mr. Kunhardt, both executed on October 16th, 1923. The deed of trust, as pointed out in the former opinion, provided for a life estate in the property mentioned (.which was the bulk of Mr. Kunhardt’s estate) to Mrs. Kunhardt, then a division into three parts of the principal (one part for each child) and payment of income of a third to each of the three children. Each child was given the power of appointment of his share. The deed also provides with great care as to the disposition of the property in the event of any child failing to exercise the power of appointment or dying prior to Mrs. Kunhardt. The will is a short document appointing executors, giving them power to sell real property and leaving all to Mrs. Kunhardt. The deed of trust, evidences the grantor’s best thought as to the disposition of the bulk of his estate and is in the nature of a final disposition thereof.
The next argument advanced is that the deed was suggested by counsel for the purpose mentioned and not by Mr. Kunhardt. It was, however, executed by the decedent who adopted the suggestion of his counsel. The fact that the suggestion of the deed came from counsel is not of itself sufficient to overcome the presumption placed upon the prosecutors that it was made in contemplation of death.
The petition for reargument calls our attention to certain New York cases which have dealt with this question and in which it has been held that the presumption created by a similar provision in the New York law has been rebutted by the circumstances set forth in the cases cited. We have examined these cases and while in some of them many of the facts are similar to the ones existing in the present case, yet other facts differentiate them. We find as a fact that the presumption created by the statute has not been overcome. The tax assessed is affirmed.