§ 220 66 Id.; To Care for Donor. mean pay and divide," thus permitting the application of the rule that, where the only words of gift are found in the direction to pay and divide at a future time, the gift is future not immediate, contingent and not vested; that the legacies bequeathed by the will vested at the testator's death, and not at the death of the widow; that the transfer tax is upon the transfer of the property itself, and " transfer " means the passing of property in possession or enjoyment, present or future, without regard to whether the actual possession and enjoyment follow immediately or come at some future time, and therefore, as the interests vested under the decedent's will prior to the Transfer Tax Law, such transfers were not taxable. Matter of Hitchins, 43 Misc. Rep. 485, 89 N. Y. S. 472; affd., 101 App. Div. 612, without opinion; affd., 181 N. Y. 553, no opinion. 175. Gift Agreement to Care for Donor for Life. An agreement by a donee of property to care for the person making the transfers during his lifetime, and supply him with money as he needed it, does not, in the absence of affirmative proof that the donor reserved to himself the beneficial use and enjoyment of the property during his life, limit the absolute character of the transfer, or render it taxable at the donor's death as a gift made to take effect at or after the donor's death. Matter of Thorne, 44 App. Div. 8, 60 N. Y. S. 419; appeal dismissed, 162 N. Y. 238. 176. Id. When Conveyance on Covenant to Support Grantor Not Subject to Transfer Tax. A deed of farm lands which reserves to the grantor and his wife the right to reside on the farm so long as Id; When Transfer Is Complete. § 220 they shall live, with the right to harvest the crop then sown and to sell wood then cut, and in which the grantees covenant that they will support the grantor and his wife so long as they shall live and will not sell the farm during the lives of the grantor and his wife, conveys a present title to the grantees, and is not a conveyance in contemplation of death or intended to take effect in possession or enjoyment after death of the grantor, and hence is not liable to a transfer tax. Matter of Hess, 110 App. Div. 476; affd., 187 N. Y. 554, on opinion of Spring, J., below. 177. When the Transfer of Decedent's Right, Title and Interest in Real Property by Trust Deed Is Complete. Decedent died April 29, 1904. On December 6, 1895, he executed a trust deed conveying two parcels of real property and assigned a certain bond and mortgage to the Farmers Loan and Trust Co., to hold the same during the life of the decedent, paying from the net income the sum of $25 to decedent and the balance thereof was to be paid to the executors of decedent's wife Esther E. James " to be by them applied to the use of the children of said Esther E. James now living and to the issue of any deceased child equally per stirpes and not per capita. And upon the death of decedent, to convey and distribute the principal of said trust estate to and among the children of said Esther E. James and the issue of any deceased child." The deed further provided that the trustee could with the consent of the grantor in writing, mortgage the real property. At the time of decedent's death the trust estate consisted of the same two pieces of real property, a railroad bond, and some cash. Between the execution of the trust deed and decedent's 1 § 220 Id.; When Transfer Is Complete. death chapter 41, Laws of 1903, was in force providing for the taxation of real as well as personal property passing to lineals and the appraiser found that the decedent left a trust estate amounting to $4,755 personal and $41,875 real, passing to his children, and was taxable at 1 per cent. The trustee appealed from the taxing order and the surrogate held: "The estates and interests of the persons taking rights in the real and personal property conveyed by the decedent by his deed of December 6, 1895, vested in them on that date. The transfer by the decedent of all his rights, title and interest therein was complete at that time: he retained no power of revocation, and his only right was as to the payment of twentyfive dollars per week, which was made a charge upon the estate and fund. The direction to convey and distribute on the death of the donor did not prevent the immediate vesting of title; and the fee vested without any new conveyance or distribution. (Watkins v. Reynolds, 123 N. Y. 211.) At the time of the conveyance there was no law in existence which imposed a tax upon a transfer in contemplation of death or otherwise, from a father to his children and grandchildren, and there never had been such a law. All of the persons who took interests under the said deed were children of the decedent. The estates and interests of such grantees were, therefore, immune from any new tax subsequently imposed by the Legislature and upon transfers of real property from a parent to his children and the Act of 1903, imposing, or attempting to impose, such a tax, was, as to them, and as affecting their vested rights under said deed, unconstitutional and void, if applicable at all. (Matter of Pell, 171 N. Y. 48; Matter of Vanderbilt, 172 N. Y. 69, 73; Matter of Craig, 97 App. Div. 289.) As a result of this reasoning no tax can be imposed upon the real property which passed by that conveyance. The personal property was much less in amount than $10,000 and its transfer is, therefore, not taxable. The order fixing the tax must be reversed." (Matter of James, N. Y. Law Journal, Nov. 1, 1905, Surrogate Thomas.) Insurance Policies. § 220 178 Assignment of Insurance Policies Not a Taxable Transfer. The decedent at the time of his death was the assured in two policies in a life insurance company. These policies upon their face were payable to the decedent's estate. At his death they were found in his safe deposit box and attached to each policy was an assignment of it, executed more than a year before his decease, in consideration of love and affection, to his wife if she survived him; otherwise to his estate. One policy was payable to the assured if he lived twenty years, and in the assignment he reserved the cash payment if he survived that period. The assignments were executed in duplicate upon blanks furnished by the company, one of which duplicates was filed with the company, as required by the policy. No evidence of the actual physical delivery of the policies and assignments was offered, nor any proof that the existence of the assignments were ever brought to the attention of the assignee. Upon these facts the court held that there could be no conflict as to the title of the policies; that the deceased cannot be deemed to have been possessed of the policies at the time of his death, nor does the widow take title to them through his will or the laws of the State; that such an assignment was not one "intended to take effect in possession or enjoyment at or after such death" as contemplated by the statute, and were not subject to a transfer tax on the death of the insured; that the assignment of a policy of insurance payable only after the death of the insured differs from the assignment of a chose in action which is payable at some future time. It is quite usual in insurance policies that the beneficiary is named as such if she survives the insured. But this does not make it, within § 220 Trust Deed - Gift Inter Vivos. the meaning of the tax law above cited, a provision to take effect after the death of the assured. She obtains an immediate title and right to enjoy the money when they become payable as death losses. Matter of Parsons, 117 App. Div. 321. 179. Where Title under Trust Deed May Vest Absolutely in Donor's Life Not a Transfer to Take Effect at or after Death. In re Estate of Benjamin Hart, N. Y. Law Journal, August 8, 1908, the United States Trust Company of New York, as trustee under a deed of trust made by Benjamin Hart, who died May 11, 1908, presented a petition to the Surrogate's Court of New York county for an order exempting the property held by said trustee, under the deed of trust, from a transfer tax. From the recitals in the deed of trust it appears that the decedent's adopted daughter, known as Isabel Hart, was about to contract marriage with a certain Frenchman, and in order that she might maintain the same position in life after her marriage that she had been accustomed to during the time she had been under the decedent's charge, and for the purpose of carrying out certain promises which the decedent had made to her, as well as those made by him to the Frenchman, the decedent, on October 31, 1894, executed a deed of trust conveying to the said trustee certain corporate bonds and stocks amounting to upwards of $200,000, in trust, to pay the income therefrom to Isabel Hart in quarterly payments" as long as he the said Benjamin Hart shall live," and upon the death of the said Benjamin Hart then to pay over, transfer, and convey the whole corpus of the said trust fund to Isabel Hart, it being understood and agreed that the said corpus of the said trust fund shall forthwith, upon the death of the said Benjamin Hart, be absolutely vested in the |