Williams, J.:
We suppose it should be assumed, for the purposes of this appeal, that the property in question was actually delivered to the trust company at the time of the execution and delivery of the indenture, November 5, 1885 ; that the trust company executed the trust according to its terms during the lifetime of the deceased, and that after the death, the trust company transferred the property to the persons named in the will pursuant to the terms of the indenture and of the will. We find nothing in, the record to support the contention of the appellant, that the report of the appraiser does not accurately express the ruling made by him Upon the: question of the intent with which the indenture of November 5, 1885, was made. It does' not appear that the executor offered to show the precise reason for [75]*75mating the indenture ; or that the appraiser ruled out the evidence not upon the grounds of its incompetency or immateriality, but upon-the ground that the onus probandi to show the intent with which the indenture was made rested upon the" comptroller; or that the-point that the record was incorrect upon this question was urged upon the surrogate before the report was confirmed. So far as the-record discloses, the only offer made by the executor was to prove-by oral testimony that the indenture was not made in the contemplation of the death of the grantor, or to take effect after his death, and the only' ruling made was that the indenture and the will were the-best evidence of the intention of the grantor and testator, and-rejecting the oral testimony.
We cannot assume that the record is incorrect in the absence of' any evidence to that effect. ¡Nor can we assume that any point was. made before the surrogate as to the incorrectness of the report in the absence of anything in the record to show that any such point was made.
The inference to be drawn from the indenture and will is that the-grantor intended to transfer the legal title to the property to thetrúst company at the time the indenture was executed and delivered upon the trust specified therein, which was to hold the property during the lifetime of the deceased and pay the income, over and', above the charges of the trust company executing the trust, to the-deceased for his use during his lifetime, and at his death to transfer-the property itself to the persons referred to therein. We do not-see how proof could be made of any different intent. This intent was plainly expressed and carried out by the trust company, and we-think no error was committed by the appraiser in ruling as he did.
What the legal effect of such intent, so expressed, was, is the only question left to be determined. Whether the indenture was made-in contemplation of death, or to take effect, in whole or in part, after-death, for the purpose of the tax, is rather a question of law than of fact. The act of 1885 (Chap. 483), as amended by Laws of 1887 (Chap. 713), which was in force at the time of the death of the-deceased, provided : “ § 1. After the passage of this act all property: which shall pass by will, or by the intestate laws of the State,,from-a/ny person, who may die seized or possessed of the same, * * * or a/ny interest therein or income therefrom, which shall be trans[76]*76ferredby deed, grant, sale or gift, made or intended to take effect in possession or enjotjment after the death of the grantor or bargainor to any person or persons, or to any body politic or corporate m trust or otherwise,, or by reason whereof any person or body politic or corporate shall become beneficially entitled in possession or expectancy to any propert/y or to the income thereof, * * *. shall be and is subject to a tax,” etc.
The question is whether, under this statute, the principal of this property, which .concededly came to the appellant and others after the death of the deceased, was taxable under this statute, considering the way in which it was transmitted from the deceased to these persons, and whether the property really passed by will or by the indenture. The property in question -was -whollypersonal in its -character.
Mo question is made by either party as to the legality of the trust established by-the. indenture in question. The only question we are interested in is as to the effect of the indenture upon the question of taxation under the statute. The claim made by the appellant is that by the indenture the absolute title passed to the trust company at the time the indentiire was executed and delivered, and that no interest therein remained in tho deceased, or passed under the will. These questions are not free from, difficulty, but it seems to us that it can hardly be said that under the indenture all interest in the property which finally came to the appellant,' passed to the-trust company -at the time the indenture was executed and delivered, and nothing remained in the deceased, so as to pass under his will, It was a mere naked trust, in which no third parties had any interest' Whatever. . • . .
The trust company had no interest in the property, but only an interest in the income for the purpose of compensating itself for its -services in the execution of the trust. While the technical legal title may be said to have passed under the indenture to the trust -company, still the property and all interest therein really remained in the deceased, ás much as though the indenture had not been made or delivered.
It is not true that the trust was irrevocable. • It is only in cases where other parties, besides the persons creating the trust have' an interest therein that the trust becomes irrevocable. We see nothing [77]*77that would have prevented the deceased from revoking the trust if he had desired to do so. Ho one had any interest to prevent his doing so. The appellant and other appointees under his will had no such interest, because the deceased could have revoked this will and made another in favor of other parties, if he desired, to do so. His next of kin referred to in the indenture had no such interest, because the deceased had power by will to secure the property to others and entirely exclude them from all interest therein. The property was to all intents and purposes the property of the decased, and subject to his sole power of disposition at any time before his death, or by will to take effect at his death, the same as if this indenture had not been made. In The N. Y. Life Ins. & Trust Co. v. Livingston (183 N. Y. 125) the testator executed and delivered to the trust company, plaintiff, a deed of trust of real and personal property with directions to pay the income to himself during his life and upon his death to convey- tlie property to such persons and in such shares as he should designate by his last will, and in default of such appointment, to his heirs at law and next of kin. By his will he gave all his estate, real and personal, which he owned, or was in any manner entitled to, to an uncle. There was no other execution of the power conferred by the trust deed, aside from this general provision of his will, and the court held this amounted to an execution of the power, Andrews, J\, saying in his opinion: “ The testator owned the property embraced in the trust, prior and up to the time the deed was executed. He reserved therein the beneficial, interest, during his life, and a power of appointment by will. This was little less than ownership,
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Williams, J.:
We suppose it should be assumed, for the purposes of this appeal, that the property in question was actually delivered to the trust company at the time of the execution and delivery of the indenture, November 5, 1885 ; that the trust company executed the trust according to its terms during the lifetime of the deceased, and that after the death, the trust company transferred the property to the persons named in the will pursuant to the terms of the indenture and of the will. We find nothing in, the record to support the contention of the appellant, that the report of the appraiser does not accurately express the ruling made by him Upon the: question of the intent with which the indenture of November 5, 1885, was made. It does' not appear that the executor offered to show the precise reason for [75]*75mating the indenture ; or that the appraiser ruled out the evidence not upon the grounds of its incompetency or immateriality, but upon-the ground that the onus probandi to show the intent with which the indenture was made rested upon the" comptroller; or that the-point that the record was incorrect upon this question was urged upon the surrogate before the report was confirmed. So far as the-record discloses, the only offer made by the executor was to prove-by oral testimony that the indenture was not made in the contemplation of the death of the grantor, or to take effect after his death, and the only' ruling made was that the indenture and the will were the-best evidence of the intention of the grantor and testator, and-rejecting the oral testimony.
We cannot assume that the record is incorrect in the absence of' any evidence to that effect. ¡Nor can we assume that any point was. made before the surrogate as to the incorrectness of the report in the absence of anything in the record to show that any such point was made.
The inference to be drawn from the indenture and will is that the-grantor intended to transfer the legal title to the property to thetrúst company at the time the indenture was executed and delivered upon the trust specified therein, which was to hold the property during the lifetime of the deceased and pay the income, over and', above the charges of the trust company executing the trust, to the-deceased for his use during his lifetime, and at his death to transfer-the property itself to the persons referred to therein. We do not-see how proof could be made of any different intent. This intent was plainly expressed and carried out by the trust company, and we-think no error was committed by the appraiser in ruling as he did.
What the legal effect of such intent, so expressed, was, is the only question left to be determined. Whether the indenture was made-in contemplation of death, or to take effect, in whole or in part, after-death, for the purpose of the tax, is rather a question of law than of fact. The act of 1885 (Chap. 483), as amended by Laws of 1887 (Chap. 713), which was in force at the time of the death of the-deceased, provided : “ § 1. After the passage of this act all property: which shall pass by will, or by the intestate laws of the State,,from-a/ny person, who may die seized or possessed of the same, * * * or a/ny interest therein or income therefrom, which shall be trans[76]*76ferredby deed, grant, sale or gift, made or intended to take effect in possession or enjotjment after the death of the grantor or bargainor to any person or persons, or to any body politic or corporate m trust or otherwise,, or by reason whereof any person or body politic or corporate shall become beneficially entitled in possession or expectancy to any propert/y or to the income thereof, * * *. shall be and is subject to a tax,” etc.
The question is whether, under this statute, the principal of this property, which .concededly came to the appellant and others after the death of the deceased, was taxable under this statute, considering the way in which it was transmitted from the deceased to these persons, and whether the property really passed by will or by the indenture. The property in question -was -whollypersonal in its -character.
Mo question is made by either party as to the legality of the trust established by-the. indenture in question. The only question we are interested in is as to the effect of the indenture upon the question of taxation under the statute. The claim made by the appellant is that by the indenture the absolute title passed to the trust company at the time the indentiire was executed and delivered, and that no interest therein remained in tho deceased, or passed under the will. These questions are not free from, difficulty, but it seems to us that it can hardly be said that under the indenture all interest in the property which finally came to the appellant,' passed to the-trust company -at the time the indenture was executed and delivered, and nothing remained in the deceased, so as to pass under his will, It was a mere naked trust, in which no third parties had any interest' Whatever. . • . .
The trust company had no interest in the property, but only an interest in the income for the purpose of compensating itself for its -services in the execution of the trust. While the technical legal title may be said to have passed under the indenture to the trust -company, still the property and all interest therein really remained in the deceased, ás much as though the indenture had not been made or delivered.
It is not true that the trust was irrevocable. • It is only in cases where other parties, besides the persons creating the trust have' an interest therein that the trust becomes irrevocable. We see nothing [77]*77that would have prevented the deceased from revoking the trust if he had desired to do so. Ho one had any interest to prevent his doing so. The appellant and other appointees under his will had no such interest, because the deceased could have revoked this will and made another in favor of other parties, if he desired, to do so. His next of kin referred to in the indenture had no such interest, because the deceased had power by will to secure the property to others and entirely exclude them from all interest therein. The property was to all intents and purposes the property of the decased, and subject to his sole power of disposition at any time before his death, or by will to take effect at his death, the same as if this indenture had not been made. In The N. Y. Life Ins. & Trust Co. v. Livingston (183 N. Y. 125) the testator executed and delivered to the trust company, plaintiff, a deed of trust of real and personal property with directions to pay the income to himself during his life and upon his death to convey- tlie property to such persons and in such shares as he should designate by his last will, and in default of such appointment, to his heirs at law and next of kin. By his will he gave all his estate, real and personal, which he owned, or was in any manner entitled to, to an uncle. There was no other execution of the power conferred by the trust deed, aside from this general provision of his will, and the court held this amounted to an execution of the power, Andrews, J\, saying in his opinion: “ The testator owned the property embraced in the trust, prior and up to the time the deed was executed. He reserved therein the beneficial, interest, during his life, and a power of appointment by will. This was little less than ownership, and the statute for the purpose of construing a disposition by will under a power of appointment treats the subject of the power as the property of the donor of the power and conclusively infers an intention in a testator to execute the power where the will, disposes of all his property, and the inference is not rebutted by express language or necessary implication,” etc.
It is true this decision was made under section 126 of the Statute of Powers, which provides that “Lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator unless the intent that the will shall not operate as an execution of the power shall appear expressly or by necessary impli[78]*78cation.” (1 R. S. 137.) But the trust was the same precisely as in. the case at bar, except that- it related to real as well as personal property; and the theory of this decision was'that, though the power Avas not by the will expressly executed, still it was effectually acted under, because really the property covered by the trust deed remained the property of the testator, and he had an interest as owner therein, notwithstanding, the trust. The property was held to have passed under the will, which merely disposed of all the property which he owned or was entitled to.
We think the deceased retained after the execution and delivery of the indenture in question the OAvnership of, or an interest in the property, which passed to the- appointees under-the will so as to render it taxable under the provisions of the statute. The indenture made and delivered by the deceased to the trust company was in effect but little more than a poAver of -attorney. Possession of and the formal legal title to the property was presumably given to the trust company to enable' it to collect the income and profits, and to pay them to deceased during his lifetime, and after his death to deliver the property to his appointees named in the will) or in default thereof to next of .kin. There Avas no gift to the trust company, for there was no irrevocable disposition or delivery of the property to it. It never became owner of the. property. A fair construction' should be given to the statute and not a forced or technical one. No opportunity should be given parties to evade the statute, and prevent the taxation of the property fairly Avithin its provisions, and we are unAvillitig tó give any-construction to the statute which will aid parties in the evasion of the law
The order appealed from should be affirmed, with costs".
Van Brunt,. P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order affirmed, with costs.