Chase, J.:
The statutes relating to a tax on the transfer of property in force prior to June 15, 1896 (Laws of 1892, chap. 399), and at all times since (Tax Law, Laws of 1896, chap. 908) provide that a tax shall be imposed upon the transfer' of any property, real or personal, “ When the transfer is of property made by a resident * * * by deed, grant, bargain, sale, or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.” They also provide that such tax shall be imposed “When any such person or corporation becomes beneficially entitled in possession or expectancy to any property or the income thereof by any such transfer, whether made before or after [168]*168the passage of this act.” The last paragraph quoted is restricted to the case of grants or gifts causa mortis. v (Matter of Seaman, 147 N. Y. 69.) Two questions require consideration : First. Were the gifts made in contemplation of the death of Cornell? Second. Were they intended to take effect in possession or enjoyment at or after his death ?
The right to impose the tax must rest upon evidence sufficient in probative force to bring it within the statute and must establish a case from which the law clearly authorizes its imposition. (Matter of , Thorne, 44 App. Div. 8.) It is not claimed that the gifts to Crispell were made for the purpose of avoiding a tax on the transfer of the property. . There is not a word of evidence tending to show a purpose to cheat or evade the law. The record before us shows that the first gift was to carry out an agreement between Cornell and Crispell that had theretofore been made by them, and which had not been consummated by reason of fear of the annoyance which might grow out of the publicity of the transaction. Before the second gift was made an application for a committee of the person and estate of Cornell to be appointed by the court had been threatened. Cornell and Crispell were then receiving whatever benefit there may have been to each in the contract by which Crispell was acting as the .secretary and medical adviser of Cornell. -Crispell was receiving from Cornell a salary of $5,000 per year. If Cornell’s mental condition should become such that a committee of his person and estate would be appointed by the court on application therefor, such committee would take charge of the property of Cornell that by will long since executed was given to Crispell and also of the person-of Cornell to the possible exclusion of Crispell. To avoid so-far as possible the consequences of such a proceeding is the reason assigned for the second gift. It, is not for us to imagine an ulterior or different purpose than that stated in the record. As far as appears, Cornell did not apprehend any immediate danger of death, nor does there appear to have been any such immediate danger.. We cannot say that the subject of his death at even a remote period of time was considered by him, except that the disposition of the property by gift was to the same person whom he desired should have such propertjr after his death. If he was about ,to die,'then there was no necessity for the gift as the property would pass under [169]*169his will. His probable death before many years was not the motive for the gift, but rather his probable continuance of life -for several years.
If a transfer of property is made for the purpose of cheating the law and avoiding payment of the transfer tax, it may well be that a gift so made, although absolute and unconditional, is made in contemplation of death, and that a tax should be paid thereon although the grantor, vendor or donor may live for many years thereafter,, but with such exception- the rule fairly to be deduced from all the authorities is that the words “ in contemplation of the death ” refer to a gift causa mortis. (Matter of Seaman, 147 N. Y. 69; Matter of Crary, 31 Misc., Rep. 72; Matter of Masury, 28 App. Div. 580 ; Matter of Edgerton, 35 id.125 ; Matter of Spaulding, 49 id. 541.) To sustain a gift causa mortis it must be made under apprehension of death from some present disease or other impending peril, and it becomes void by a 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. (Ridden v. Thrall, 125 N. Y. 572.) The gift to Crispell was not a gift causa mortis, and it was not made to avoid the payment of the transfer tax. The tax is on the devolution of property. It is the right of succession of property and not the property itself that is taxed. (Matter of Dows, 167 N. Y. 227.)
The legal title to the stocks and bonds included in each gift at once vested in Crispell. There was no possible contingency or circumstance that could affect such title. The intention of Cornell to transfer to Crispell the principal and the income of the bonds and stocks included in the first gift absolutely was expressly stated by him at the time of the transfer. If Crispell had failed to keep his agreement in regard to paying the income to Cornell, he would have-subjected himself to an action to enforce the agreement. (Matter of Thorne, 44. App. Div. 8.) .The agreement made contemporaneously with the second gift contemplates that Crispell has the absolute ownership of the bonds and stocks with power to collect,, exchange and sell them at pleasure. It is not necessary to speculate as to what relief Cornell could have obtained in equity in case of default by Crispell in carrying out the written agreement. All of the property transferred was susceptible of consideration and own[170]*170ership apart from the income thereon. (Matter of Brcmdreth, 58 App. Div. 575.) Assume that Cornell intended to reserve to himself the dividends or interest declared or paid upon the identical bonds or stocks transferred, such reservation of income would not prevent the title to the bonds and stocks- themselves passing to Crispell, if that was the intention of the parties.
Contracts for the sale of bonds and stock, less dividends or interest, are not uncommon. We are not aware of any legal or other reason why such a sale cannot be made. The gift of the bonds and stock to Crispell being absolute, they became his property subject to his debts and transferable as any other property. The devolution of the title to the bonds and stock was at the date of the gifts respectively. • They then ceased to be the- property of Cornell and became the property of Crispell. Confessedly, Crispell had the pos-, session of the bonds and stock after the gifts respectively. He had also all the enjoyment of them that it was possible for the donor to give as apart from the income. Such • right of enjoyment as it is possible to give is all that is required. (Matter of Bostwick, 160 N. Y. 489.) There was nothing to prevent Crispell selling his interest in the bonds and stock and enjoying the proceeds of- the -sale. (Onondaga-Trust & Deposit Co. v. Price, 87 N, Y. 542.)
The cases cited by the respondent, where the tax has been upheld are all clearly distinguishable from this case. In Matter of Green (153 N. Y. 223) the fund was tranferred to a trustee, reserving the right to the grantor to modify the instrument at any time with the consent of the trustee, and to appoint a successor in case of his death. The grantor reserved the income, but directed the trustee at - her death to divide and pay over the fund to three nieces, and.
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Chase, J.:
The statutes relating to a tax on the transfer of property in force prior to June 15, 1896 (Laws of 1892, chap. 399), and at all times since (Tax Law, Laws of 1896, chap. 908) provide that a tax shall be imposed upon the transfer' of any property, real or personal, “ When the transfer is of property made by a resident * * * by deed, grant, bargain, sale, or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.” They also provide that such tax shall be imposed “When any such person or corporation becomes beneficially entitled in possession or expectancy to any property or the income thereof by any such transfer, whether made before or after [168]*168the passage of this act.” The last paragraph quoted is restricted to the case of grants or gifts causa mortis. v (Matter of Seaman, 147 N. Y. 69.) Two questions require consideration : First. Were the gifts made in contemplation of the death of Cornell? Second. Were they intended to take effect in possession or enjoyment at or after his death ?
The right to impose the tax must rest upon evidence sufficient in probative force to bring it within the statute and must establish a case from which the law clearly authorizes its imposition. (Matter of , Thorne, 44 App. Div. 8.) It is not claimed that the gifts to Crispell were made for the purpose of avoiding a tax on the transfer of the property. . There is not a word of evidence tending to show a purpose to cheat or evade the law. The record before us shows that the first gift was to carry out an agreement between Cornell and Crispell that had theretofore been made by them, and which had not been consummated by reason of fear of the annoyance which might grow out of the publicity of the transaction. Before the second gift was made an application for a committee of the person and estate of Cornell to be appointed by the court had been threatened. Cornell and Crispell were then receiving whatever benefit there may have been to each in the contract by which Crispell was acting as the .secretary and medical adviser of Cornell. -Crispell was receiving from Cornell a salary of $5,000 per year. If Cornell’s mental condition should become such that a committee of his person and estate would be appointed by the court on application therefor, such committee would take charge of the property of Cornell that by will long since executed was given to Crispell and also of the person-of Cornell to the possible exclusion of Crispell. To avoid so-far as possible the consequences of such a proceeding is the reason assigned for the second gift. It, is not for us to imagine an ulterior or different purpose than that stated in the record. As far as appears, Cornell did not apprehend any immediate danger of death, nor does there appear to have been any such immediate danger.. We cannot say that the subject of his death at even a remote period of time was considered by him, except that the disposition of the property by gift was to the same person whom he desired should have such propertjr after his death. If he was about ,to die,'then there was no necessity for the gift as the property would pass under [169]*169his will. His probable death before many years was not the motive for the gift, but rather his probable continuance of life -for several years.
If a transfer of property is made for the purpose of cheating the law and avoiding payment of the transfer tax, it may well be that a gift so made, although absolute and unconditional, is made in contemplation of death, and that a tax should be paid thereon although the grantor, vendor or donor may live for many years thereafter,, but with such exception- the rule fairly to be deduced from all the authorities is that the words “ in contemplation of the death ” refer to a gift causa mortis. (Matter of Seaman, 147 N. Y. 69; Matter of Crary, 31 Misc., Rep. 72; Matter of Masury, 28 App. Div. 580 ; Matter of Edgerton, 35 id.125 ; Matter of Spaulding, 49 id. 541.) To sustain a gift causa mortis it must be made under apprehension of death from some present disease or other impending peril, and it becomes void by a 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. (Ridden v. Thrall, 125 N. Y. 572.) The gift to Crispell was not a gift causa mortis, and it was not made to avoid the payment of the transfer tax. The tax is on the devolution of property. It is the right of succession of property and not the property itself that is taxed. (Matter of Dows, 167 N. Y. 227.)
The legal title to the stocks and bonds included in each gift at once vested in Crispell. There was no possible contingency or circumstance that could affect such title. The intention of Cornell to transfer to Crispell the principal and the income of the bonds and stocks included in the first gift absolutely was expressly stated by him at the time of the transfer. If Crispell had failed to keep his agreement in regard to paying the income to Cornell, he would have-subjected himself to an action to enforce the agreement. (Matter of Thorne, 44. App. Div. 8.) .The agreement made contemporaneously with the second gift contemplates that Crispell has the absolute ownership of the bonds and stocks with power to collect,, exchange and sell them at pleasure. It is not necessary to speculate as to what relief Cornell could have obtained in equity in case of default by Crispell in carrying out the written agreement. All of the property transferred was susceptible of consideration and own[170]*170ership apart from the income thereon. (Matter of Brcmdreth, 58 App. Div. 575.) Assume that Cornell intended to reserve to himself the dividends or interest declared or paid upon the identical bonds or stocks transferred, such reservation of income would not prevent the title to the bonds and stocks- themselves passing to Crispell, if that was the intention of the parties.
Contracts for the sale of bonds and stock, less dividends or interest, are not uncommon. We are not aware of any legal or other reason why such a sale cannot be made. The gift of the bonds and stock to Crispell being absolute, they became his property subject to his debts and transferable as any other property. The devolution of the title to the bonds and stock was at the date of the gifts respectively. • They then ceased to be the- property of Cornell and became the property of Crispell. Confessedly, Crispell had the pos-, session of the bonds and stock after the gifts respectively. He had also all the enjoyment of them that it was possible for the donor to give as apart from the income. Such • right of enjoyment as it is possible to give is all that is required. (Matter of Bostwick, 160 N. Y. 489.) There was nothing to prevent Crispell selling his interest in the bonds and stock and enjoying the proceeds of- the -sale. (Onondaga-Trust & Deposit Co. v. Price, 87 N, Y. 542.)
The cases cited by the respondent, where the tax has been upheld are all clearly distinguishable from this case. In Matter of Green (153 N. Y. 223) the fund was tranferred to a trustee, reserving the right to the grantor to modify the instrument at any time with the consent of the trustee, and to appoint a successor in case of his death. The grantor reserved the income, but directed the trustee at - her death to divide and pay over the fund to three nieces, and. also made further provision in case of the death of either of these nieces. The nieces never had the possession or enjoyment of the fund and clearly took but a remainder, and .that subject to the instrument being changed to their entire exclusion.
In Matter of Masury (28 App. Div. 580) the trust of March 10, 1890, gave the fund to a trustee, and like the other trusts therein mentioned was subject to revocation by the grantor, and in this particular trust the income was reserved to the grantor during life, and after his death the beneficiary, John M. Masury, received a life estate only. He was never to have title to the securities themselves, [171]*171and clearly did not, under the trust instrument, have the possession or enjoyment of the income until after the death of the grantor.
In Matter of Ogsbury (7 App. Div. 71) testator executed to a trust company an indenture granting and selling to it certain securities Upon trust, to receive the income and pay the amount thereof to him during his life, and upon his death to assign the same to such persons as the testator should, by his last will or instrument in the nature thereof, appoint, and in default thereof to his next of kin. Held, to have been a mere naked trust, in which no third party had an interest, and that the testator could at any time have revoked the trust if he had desired to do so.
The executor, as such, is entitled to appeal from an order and decree fixing a transfer tax. He is made personally liable for the tax (Tax Law [Laws of 1896, chap. 908], § 222), and is a party aggrieved within the" meaning of the provisions of the Code of Civil Procedure relating to appeals.
The order modifying the fate of interest to be paid on the tax should not be disturbed.
All concurred.
Order and decree of the surrogate modified by reducing the tax to $590.86, and as so modified affirmed, with costs to the executor.