propped up in bed with pillows, and the next day he made his will. He died January 27, 1907. In transfer tax proceedings before the appraiser testimony was given to show that the gift of this real estate had been contemplated by the decedent for upwards of two years prior to his death, and that the decedent's illness at the time he executed the deed was not necessarily fatal. The appraiser held this deed to be an absolute gift not made in contemplation of death, and therefore no part of the decedent's estate, and the order of the surrogate imposed no transfer tax thereon. The Comptroller appealed to the surrogate, and in a written opinion the surrogate holds that the gift to the city of Jamestown is not taxable, it not having been made by the donor in contemplation of death. Matter of Jones, Chautauqua County (not reported) The Surrogate in reaching this conclusion, says: "I apprehend that a gift 'in contemplation of death' must be something more than a gift near in time to death, for the time of one's death may be a mere matter of accident or of causes that would arouse no previous apprehension of death. I am also convinced that a mere thought of death as a possible outcome of a sickness would not impress taxability upon a gift made during such sickness. To contemplate means to regard with deliberate care, to look forward to, and I believe the intent of the Legislature was to tax gifts inter vivos only when made in expectation of death and as one of the preparations for death. The Legislature has not meant to discourage gifts inter vivos, especially when made for pious and charitable purposes, but has made them taxable only when made under such circumstances that it can be said that the gift ought to be put on the same basis as a gift by will or by gift to take effect at death. "The next day after delivering this deed Mr. Jones made his last will. In an able argument for the State, Attorney Sylvester argued that this fact was an indication that the deed was made in contemplation of death. I do not agree with him. On December 24th Mr. Jones, by an irrevocable act, consummated a plan he had in mind for two years; on December 25th, by a revocable act, he disposed of the rest of his property. He had made several previous wills before his sickness. Making his will was not an indication that he expected to die. He had a great deal of property, he had no near relatives. sickness that would take him to bed would naturally set him to thinking about his property and its disposition. But, from the fact that he earried out a plan that he had contemplated for two years, on the day before he made the will which subsequently proved to be his last will, I A § 220 Gifts Taking Effect at Death. fail to conclude that he contemplated death at the time of carrying out that plan of making a gift to the city to which he had already given one large gift." (Appeal is now pending in the Appellate Division, Fourth Department, from the surrogate's decision.) 166. Gifts Taking Effect "at or after the Donor's Death." When property is delivered by the owner to a trustee, under an instrument purporting to assign it to the trustee and his successors in trust, to collect the income and apply the same to the grantor's use during life, and after the grantor's death to distribute the property among designated remaindermen, the transfer to the remaindermen must be deemed to have been "intended to take effect in possession or enjoyment, at or after the death" of the grantor or donor; and is taxable. Matter of Greene, 153 N. Y. 223. It matters not whether the transfer is by grant or by gift, so long as it was intended to take effect in possession or enjoyment at or after the death of the grantor or donor, the devolution of title is subject to the tax. Matter of Greene, 153 N. Y. 223-228. 167. Id.; When a Trust Deed Does Not Constitute an Absolute Gift. A trust deed did not constitute an absolute gift of the grantor's property during his life, so as to exempt the transfer from tax under the Taxable Transfer Act of 1892 (chap. 399), as a gift intended to take effect at or after the grantor's death, where, after the delivery of the deed to the trustee, the grantor not only was entitled at any time to revest himself with the ownership of the property, but he continued to be able to enjoy it or to manage and dispose of it as effectually as he might previously have done, by reserving to Id.; When Not an Absolute Gift. § 220 himself power to alter or amend the trust by notice to the trustee, to withdraw or exchange securities, and to control the acts of the trustee in selling or disposing of the securities, with respect to investments. Matter of Bostwick, 160 N. Y. 489. In the Matter of Skinner, 45 Misc. Rep. 559, 92 N. Y. S. 972, it appeared that the decedent, a resident of Westchester county, several months before his death, in 1901, made and executed a trust deed conveying to his friend Langley all of his property, real and personal, in consideration of the sum of $1, and the further consideration of services rendered and to be thereafter rendered by such friend, to have and to hold the same in trust, nevertheless, for the use of the grantor during his natural life, and at his death to become the property of the friend absolutely. Appended to this trust deed was a duly executed and acknowledged acceptance of the trust by the friend, and a further recital that the grantor could have and use at any time during his life any part or portion of the properties mentioned therein, and that the friend would execute any instruments that might be necessary to carry into effect the understanding and agreement of the parties thereto. In transfer tax proceedings the decedent's net estate was found to be $105,527.73, and on May 14, 1904, an order was entered assessing a tax upon the transfer thereof to the friend Langley at 5 per cent. An appeal was taken by Langley upon various grounds, one of which was that the order assessing the tax was erroneous in that the transfer was not made in contemplation of death or intended to take effect at or after the death of the decedent, and therefore is not subject to any tax whatever. The surrogate held that it was never intended that he (Langley) should become the absolute owner of this property until at or after the death of the grantor, and that the transfer tax has been properly assessed. Citing Matter of Cornell, 170 N. Y. 423; Matter of Brandreth, 169 N. Y. 437. The Appellate Division of the Second Department affirmed the order of the surrogate so far as it imposed a tax upon the property transferred by the decedent under the trust deed to Langley, but modified the order in other respects. Matter of Skinner, 106 App. Div. 217. One of four certain trust deeds provides that the avails shall go to the donor during his lifetime, and from and after his death the avails were to go to the donor's grandson. Held, that such deed did not vest the beneficiary named with any right of property until the death of the donor, at which time it became taxable. Matter of Masury, 28 App. Div. 580, 51 N. Y. S. 331; affd., 159 N. Y. 532. A father executed a trust deed in 1892, transferring certain personal property to trustees, to invest the principal and, from the net income, to pay during his life to his daughter the sum of $1,200 annually, the balance of such income, if any, to be returned to himself, and at his death to pay over the corpus of the trust fund to said daughter, if living, or, if she should be dead, then to her issue, or, in default of issue, then to such persons as the daughter should by her will appoint, or, in default of such appointment, then to such persons as would be entitled to the property if the daughter had died intestate and in possession of the property, excepting her mother, who released her right of succession thereto. The daughter died in September, 1896, unmarried, without issue and with Id.; Conditions or Agreement. § 220 out making any appointment. The father died in April, 1898. Held, that, as the contingent remainders given to the next of kin of the daughter could not take effect in possession or enjoyment until the father's death, the transfer to them was taxable under subdivision 3 of section 220, as a gift taking effect at or after the donor's death. Matter of Cruger, 54 App. Div. 405, 66 N. Y. S. 636; affd., 166 N. Y. 602, citing Matter of Greene, 153 N. Y. 223. 168. Id.; Where Donee only Survived the Donor Three Days. A gift intended to take effect in possession or enjoyment at the death of the donor is taxable, although the donee survived the donor for only three days, having died before there had been any administration upon the donor's estate, and before actual delivery of the certificate representing the subject of the gift had been made to the donee. The transfer from the donor to the donee is taxable; also the transfer of the subject of the gift from the donee to her legatee is taxable. Matter of Borup, 28 Misc. Rep. 474, 59 N. Y. S. 1097. 169. Id.; upon Conditions or Agreement. A gift of corporate stock upon conditions that all dividends declared upon it for the term of his life should be received by the owner, and that he should have the right to vote upon it the same as though no transfer had been made, is a gift of a remainder in the stock after the death of the donor, and is taxable. Matter of Brandreth, 169 N. N. 437, revg. same case, 58 App. Div. 575, 69 N. Y. S. 142. A gift of securities under an agreement that the donor should have during his life "all or such part of the net income thereof as he might wish," the donee |