The matter is before us on rule to show cause why a writ ofcertiorari should not issue to review a decree in the Prerogative Court which affirmed the assessment of a transfer inheritance tax by the State Tax Commissioner on the estate of Henry T. Folsom, deceased, in the amount of $2,436.36. With the papers comes the stipulation that if it is determined that a writ of certiorari should issue the merits of the controversy and the arguments and briefs of counsel on the return of the rule may be considered by the court as if a writ of *Page 479 certiorari had been issued and the records and depositions had been returned pursuant to the writ.

The ultimate question for decision is whether the testator in transferring to his son 1,065 shares of stock of H. D. Folsom Arms Company made a gift "in contemplation of death" within the meaning of R.S. 54:34-1(c).

We have made an independent re-examination of the facts.Scheider v. Martin, 124 N.J.L. 567. We have weighed the evidence and made our own factual findings; and we conclude that the weight of the evidence supports the assessment. The depositions taken under the rule do not substantially alter the tenor of the earlier proofs. We are in accord with the Vice-Ordinary's review of the facts and his conclusion thereon that the weight of the evidence supports the Commissioner's finding. We differ from so much of his opinion as places the the burden of proof in such an instance upon the taxpayer. Our construction of the law was stated in Moore v. Martin, 125Id. 189 — decided after the filing of the Vice-Ordinary's opinion in the instant case — namely, that when the transfer is not made within two years prior to the death of the donor, the onus of establishing, by evidence, that the gift was made in contemplation of death rests upon the taxing authorities.

In view of our determination on that point of law, we shall assume, in accordance with the stipulation, that the case is before us on its merits.

The decree below is affirmed, without costs.