Id.; Evidence Insufficient to Establish. 8 220 The testimony in this case showed that Mrs. Schinzel never saw the statement before she found it in the box after her husband's death, and further, that she had never been to the box before that time, that she had never bought any of these securities herself or collected any dividends or interest; that she did not know anything about them. It also appeared that the decedent had collected dividends on the stock and interest on the bonds in question and had deposited the same in his personal bank account, calling these deposits "Deposits account Mrs G. H. S.," but that he had paid his everyday household and other bills from this bank account. The surrogate's order was affirmed without opinion. Matter of Schinzel, 127 App. Div. 941. 153. Id.; Failure for Want of Delivery Implied. Trust Will Not Be An endorsement on an envelope containing bonds indicates an intention to make a gift and not to constitute a trust, and where an intended gift fails for want of delivery the court cannot supply such a defect by construing the transaction as a trust. Matter of King, 51 Misc. Rep. 375–381 (citing Young v. Young, 80 N. Y 422; Matter of Crawford, 113 N. Y. 560). 154. Id.; Evidence Insufficient to Establish. In the Matter of Gegan v. Union Trust Co., 129 App. Div. 184, it appears that the plaintiff, who had been housekeeper for a testator, brought action against his executors to establish a gift of bonds inter vivos or a trust thereof for her benefit. The testator left her a legacy by his will and during his lifetime had expressed an intention to increase it but had not done so; that he had stated to a third person that he intended to leave § 220 Trust Deed Power to Revoke, her certain bonds; that he had given them to her and that she could get them at any time if anything happened to him. After testator's death the bonds were found in his safe deposit box attached by a rubber band to an envelope containing papers owned by the plaintiff and endorsed by the deceased in writing as belonging to her. Held that the evidence was insufficient to establish a gift of the bonds, or that the decedent made himself a trustee thereof for the benefit of the plaintiff. 155. Id. Power Reserved to Donor to Revoke a Trust Deed, Not Sufficient Evidence of Intent Not to Make an Absolute Transfer. In the Matter of La Farge, N. Y. Law Journal of November 17, 1908, it appears that the decedent, in 1869, executed a deed of trust conveying his equal undivided one-fourth part of premises known as number 667 Broadway, New York city, and the lot in the rear thereof, extending through to Mercer street, upon the trust to apply the net income to the use of the said La Farge during his life and upon his death, leaving issue, the property and trust estate was to go to such issue, and if the said La Farge died without issue then the property was to go to his brothers and sisters and their issue per stirpes. The said La Farge reserved the right to dispose of the property by appointment by will in the event of his leaving issue, and also reserved the right to appoint by will in case he left no issue. The trust deed also contained a provision to the effect that he and the trustee could by a joint instrument in writing annul and make void the trust deed and all trusts, powers, and estates therein contained. The said La Farge died November 9, 1906, intestate, without issue, and the trust deed was in force at the time of his death. It further appears that prior to decedent's death the real property had been sold under mortgage foreclosure, and the surplus belonging to the decedent was invested in bonds and mortgages and cash amounting to upwards of $40,000. No letters of administration were issued upon decedent's estate, but in transfer tax proceedings thereon a tax was imposed upon the share of this fund passing to the brothers, sisters, nephews, and nieces of decedent, respectively. Upon appeal to the surrogate the taxing order was reversed, Surrogate Thomas holding that the mere reservation of a power to revoke the conveyance was of itself not sufficient evidence to support a finding of an intent in the donor not to make an absolute transfer. 156. Distinction between Gifts Inter Vivos and Causa Mortis. In Ridden v. Thrall, 125 N. Y. 572, the court points out the distinction between a gift inter vivos and a gift causa mortis, Judge Earl, in his opinion, stating, at page 579: "Gifts causa mortis as well as gifts inter vivos are based upon the fundamental right everyone has of disposing of his property as he wills. The law leaves the power of disposition complete, but to guard against fraud and imposition, regulates the methods by which it is accomplished. To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos: the moment the gift is thus consummated it becomes absolute and irrevocable. But in the case of gifts causa mortis more is needed. The gift must be made under the apprehension of death from some present § 220 Construction of Statute. disease or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the lifetime of the donor. It is not needful that the gift be made in extremis when there is no time or opportunity to make a will. It is often difficult to determine when a gift has been made in contemplation of death within the meaning of the statute. No one would contend that if a person, fully realizing that his death would occur within a few hours, should convey by deed his real estate and receive the full consideration therefor, that such a transfer would be taxable, although the conveyance was clearly made in contemplation of death;" or, if a person under similar circumstances should transfer personal property in payment of a debt, stating that he desired to have all debts adjusted before his death, the statute would not apply, although the transaction would be within its provisions, if literally construed. 157. Literal Construction of the Statute Not Intended. The court said, in the Matter of Spaulding, 49 App Div. 541, 63 N. Y. S. 694; affd., 163 N. Y. 607, that it would not be contended that a literal construction of the provisions of the statute relating to gifts made "in contemplation of death" would be reasonable or was intended by the Legislature, and at page 546 says: "A man of middle age, in full health and strength, may transfer his house and lot and other property to his wife for the purpose of securing her against want in case of his death, and declare such purpose in the deed of conveyance. Clearly such conveyance would be made in contemplation of death, but if the grantee lived Construction of Statute. § 220 ten, fifteen, or thirty years after, the property would not be subject to the tax, and this is so, notwithstanding the transaction is within the precise words of the statute." "A father may have engaged in business during a lifetime in which he had accumulated and has invested a fortune; he is becoming old; less active, more infirm and feeble, and less able to conduct the business. He concludes to and does give and transfer the business to a trusted son. It was not transferred or received for the purpose of evading the transfer tax, but because the father wished to observe the management of the business by the son before his death, and to be relieved of its burden. The father lives five or ten years after the transfer, which was concededly made because he understood and believed that, death was not far distant. Under such circumstances we think it could not be successfully urged that the property and business transferred were subject to tax under the statute in question, and yet such transfer would fall directly within its provisions if given a literal interpretation." It will be seen, therefore, that the question of whether a gift is "made in contemplation of death," so as to come within the intention of the statute, can only be determined after a full consideration of all the facts surrounding each transaction. A provision in the statute fixing a definite time prior to death, within which gifts would be deemed "made in contemplation of death," would settle all contention in respect to gifts of this kind, but as yet the wisdom. or even the necessity, of such a provision has not received the consideration of the Legislature. |