§ 220 Gifts, "in Contemplation of Death." 158. To What the Words "in Contemplation of Death" Refer. The words" in contemplation of the death," used in the statute, do not refer to that general expectation of death which every mortal entertains, but rather the apprehension which arises from some existing condition of body or some impending peril. Matter of Baker, 83 App. Div. 530, 82 N. Y. S. 390; affd., 178 N. Y. 575. 159. Gifts in Contemplation of Death Proof, etc. To prove that property is transferred in contemplation of death is exceedingly difficult, as the only parties whose intimacy with a decedent would afford them an opportunity of being cognizant of decedent's intention are usually those whose interests would be served by testimony to the effect that the gift was not made in contemplation of death, and the State is therefore compelled to rely upon conclusions derived from the testimony of witnesses who are interested in disproving its contention. It would therefore appear that in determining whether a gift was made in contemplation of death the court should not be restricted to those cases where the circumstances (such as that the gift was made when the doner was in extremis, or was dangerously ill, or in danger of immediate death, or afflicted with an acute disease) would indicate the existence of those conditions necessarily requisite to the validity of a gift causa mortis, but rather that the facts and circumstances surrounding the making of the gift be taken into consideration and a determination arrived at as to whether such facts and circumstances indicate that the gift was made while the donor contemplated the probability of his own death in the immediate future or whether or not the imminence of the donor's death Burden of Proof. Id.; § 220 was in any substantial sense a direct cause of such gift (Matter of Palmer, 117 App. Div. 360). Accordingly, where a decedent had been suffering and ill for over two years before his death, and ten days before that event transferred by deed to his adopted son all his real estate, it appearing that the donee, if he had not acquired the land by the deeds would have received it as devisee under the decedent's will, such facts would indicate that the decedent at that time had such an apprehension of approaching dissolution that he must have contemplated the probability of his own demise within a very short time thereafter. Matter of Price, N. Y. Law Journal, December 24, 1908, Surrogate Beckett, 62 Misc. Rep. 149. 160. Id.; Burden of Proof - Circumstantial Evidence. While it is undoubtedly true that the burden of showing that a gift is made in contemplation of death, rests upon the Comptroller, the evidence to prove the same must of necessity be circumstantial rather than direct, for attempts to evade the payment of a transfer tax are usually secret, yet such circumstantial evidence may overbear the positive testimony of an interested party who swears to the contrary. Matter of Palmer, 117 App. Div. 360–368. 161. Id. Gift of Property to Son on Condition that He Provides for Donor's Family - When Transfer in Contemplation of Death. The decedent being ill, of a lingering disease which affected both mind and body, about three months prior to his death made an assignment of all his property to his son, said assignment being attached to a schedule and reciting that the son has "absolute control of the $ 220 Id.; Facts Showing Gift. assets herein named." The son deposited the securities assigned in a safe deposit box in the name of three trustees, one of whom was himself and the other two being the persons named as executors of his father's will. In transfer tax proceedings upon the decedent's estate the son testified that it was mutually understood that he should look after the welfare of his mother, brother, and sister, in the same manner as the decedent had always done, and as a matter of fact the securities after the donor's death were divided among his wife and children by the trustees. The decedent also transferred savings bank accounts so as to stand in his own name and that of his son "payable to either or the survivor of either," The son in making affidavit to the amount of the estate before the transfer tax appraiser first included the savings bank accounts, but afterwards maintained that they were included in ignorance of his legal right thereto. Upon all the evidence the court held that the gift was in trust for the benefit of the widow and next of kin of the donor, and was not an absolute gift to the son, and that such disposition of his property was clearly made in contemplation of death and was subject to a transfer tax. Matter of Palmer, 117 App. Div. 360. 162. Id. Facts Showing Gift "in Contemplation of Death." The decedent was seventy-six years of age and for the two years previous to his death had been ill with stomach and bowel troubles and had been treated for said diseases in a sanitarium and the German Hospital. Ten days before his death he sent for his attorney, and after telling him that he didn't know when his ailment would take a turn for the worse, stated to him that he desired to make such a disposition of his property Grantee Notice of Proceedings. § 220 as would save his son the annoyance of a will contest, and he thereupon executed deeds by which he conveyed all his real estate, amounting to $261,000, to his adopted son, which deeds were delivered to the adopted son and recorded prior to the donor's death, the court held that although there was an absolute transfer of the real estate, yet the facts and circumstances connected with the execution of the deeds and the transfer of the real estate lead to the conclusion that the gift was made in contemplation of death and was a taxable transfer. Matter of Price, N. Y. Law Journal, December 24, 1908. Deeds of real property executed by testatrix without consideration and delivered to her nieces when the testatrix was seventy-nine years old and was suffering from consumption, from which she knew she would never recover, are gifts inter vivos "made in contemplation of the death" of the donor, and the property transferred is taxable, notwithstanding the testatrix had, by her will made a few months previously, constituted the nieces her residuary legatees of practically the same property. Matter of Birdsall, 22 Misc. Rep. 180, 49 N. Y. S. 450; affd., 43 App. Div. 624, 60 N. Y. S. 1133. Testator during his last illness delivered to his niece a note of his executor, saying that he had given it to her, that she was to keep it and that he did not want his heirs to know about it- held a valid gift causa mortis and subject to tax. Matter of Crosby, 46 N. Y. St. R. 442, 20 N. Y. S. 62. 163. Id. Grantee Must Have Notice of Proceedings. A claim by the State that real property alleged to have been conveyed by a decedent" in contemplation § 220 Not in Contemplation of Death. of death" has escaped taxation cannot be heard until the grantee has had notice of the proceeding to fix the tax. Matter of Wood, 40 Misc. Rep. 155, 81 N. Y. S. 511. 164. Gifts, Not Made in Contemplation of Death of Donor. A gift inter vivos is not a transfer "made in contemplation of the death of the grantor" within the meaning of the statute, unless made under circumstances which impress it with the distinguishing characteristics of a gift causa mortis, or unless made with the purpose of evading the provisions of the statute. Matter of Spaulding, 49 App. Div. 541, 63 N. Y. S. 694; affd., 163 N. Y. 607. On the general question as to what constitutes a gift inter vivos see Matter of Swade, 65 App. Div. 592, 72 N. Y. S. 1030. A man eighty-six years old, whose mental faculties were unimpaired, but whose physical powers were gradually deteriorating, gave to a son securities valued at over $1,500,000, to be equally divided between himself and his brother and sister. The securities were delivered to the children, and the father, who died about a year after making the gift, never saw the securities or attempted to exercise any control over them. Held, that the gifts were not "made in contemplation of the death of the grantor," within the meaning of the statute. Matter of Spaulding, 49 App. Div. 541, 63 N. Y. S. 694; affd., 163 N. Y. 607. The president of a corporation, being ill, and advised by his physician to take a long vacation when he recovered, transferred all his stock in such corporation to his wife, excepting one share, and the wife became a member of the company at once and transacted business in his place. The transfer of the stock was in |