Smith, J.:
That Rufus King Palmer .took the property under this assignment for the purpose of. passing the property to the widow and children of John Palmer in precise accordance with the plan of distribution in the will of John Palmer seems 'to 'me of irresistible inference. With a widow, two sons and a daughter, John Palmer never gave that property absolutely to his son Rufus. Moreover, Rufus swears upon the stand that there was an understanding which he does not admit amounted to an agreement that lie would tape care of his mother, brother and sister “in the same manner as * * * decedent had always done.” .From the date of the transfer upon January tenth until the time of John Palmer’s death not one act of Rufus in the handling of this property is that of an independent owner. On 'the contrary, every act is in accord with the recognition on his part that the. property was his father’s and that the transfer was simply a means to accomplish the passing of the property to' his father’s heirs. The bank accounts remained in the name of his father until his father directed Rufus to give to him a bank slip upon which he directed the accounts to be transferred to “ John Palmer 'or Rufus K. Palmer, payable to either, or survivor ■of either.” This fact of itself is not without significance of the fact that the act was done “ in contemplation of * * * death.” The securities of the deceased were not changed from the safe deposit box of John Palmer until they' were put into a safe deposit box in the name of Rufus Palmer, William S. Hackett and Edward G. Sherley, who happened tobe the trustees named in the will of John Palmer. These securities were put in this safe deposit box under the condition that they could be drawn, not by Rufus alone, but only by two of the three trustees. The exact nature of that trust [365]*365is not shown. Upon this point the son Bufus is evasive. If he made the trust of his own volition it is inconceivable that he should be unable to state its exact terms. If the trust were, however, for the purpose of carrying out the provisions of the will of John Palmer there is good reason why the exact terms of the trust should not here be shown and the respondents aré the only ones who have the power of showing by direct evidence just the extent and nature of that trust. After the death of his father the remaining securities belonging to the estate were placed in the same trust box although they must be administered undér the direction of the trust contained in the will. Again, all income collected from securities was divided by Bufus between his mother, his brother and sister, and himself, as is evident, under his father’s direction either under the terms upon which he originally took the property or at tho time of the collection of the moneys. After the death of John Paliner Bufus Palmer makes affidavit in which he states that the property of his father amounts to $84,000 which includes these three bank accounts which had been placed by direction of his father in the name of his father and himself “ Payable to either or survivor of either.” The inconsistency of the position that these bank accounts belonged to the father and that the rest of the property was his absolute property did not appear so clearly to Bufus as it did afterwards to Ins counsel who advised him that the property under the assignment was all his property except ^he small amount which he did not accept and remove from his father’s safe deposit box.
It may be that John Palmer was not anticipating immediate death. He had been sick, however, for many years and for the last fourteen months prior to the making of this assignment he had been much worse. His mind was affected and Ins physical infirmity increased. That he was contemplating the contingency of death when he made this transfer seems to me undoubted. The absolute transfer with the secret trust, the apparent subsequent direction by him of the estate, the grasp that he still held upon the bank accounts, the transfer of the securities to the same trustees designated in his will before his death, pass .beyond suspicion and point unerringly to an intent upon his part to provide for the passing of his estate after he was gone. The - only reason assigned by these respondents for this transfer is that the estate had become a burden [366]*366upon him and as he had full confidence in Rufus he wanted, to pass' it over to his hands. This reason, however, has little weight when it appears that for fifteen years the son Rufus in whom he had so great confidence held a general power of attorney and could with equal force have accomplished his purposes under that power of attorney as under the formal assignment made. If this order of the surrogate stands, a man facing death has by indirection bequeathed his property and evaded payment of his share of the burden of taxation. As against just such transfers, as I understand, the Legislature intended to provide .when it declared subject to taxation transfers made in' contemplation of death.
The respondents urge certain legal objections to a construction of this gift as made in contemplation of death. That the gift was in form inter vivos rather than causa mortis is clearly shown. The delivery of the inventory with.the assignment thereupon was a. sufficient delivery to complete the gift. That the gift was in trust and1, not to Rufus absolutely would be held by any court, wheresoever' the question should arise, upon the testimony of Rufus himself and upon his subsequent conduct, which gives color to the motive of the ■ gift. That trust, however, was not a trust fór Jphn Palmer so much as it was a trust for his widow and next of kin and, therefore,, that trust does not come within the condemnation of the trust in the case, of Matter of Cornell (170 N. Y. 423) or the case of Matter of Brandreth (169 id. 437).
It is strenuously urged, however, that this expression “ in contemplation of * * * death ” under the authorities refers simply to a gift causa mortis and does not include a gift inter vivos. This contention is not unsupported by authority. Such a construction was given to the phrase in Matter of Seaman (147 N. Y. 76, 77). In that case,, however, the'question did not arise in the same way as it,, is here presented. It was not necessary there -to decide that a gift inter vivos made before death and for the purpose of avoiding-the payment of this tax would not be a gift in contemplation of. death. In Matter of Edgerton (35 App. Div. 125), Merwin, J., in our own court seems in part to recognize this as the rule of law Other cases in the Appellate Division, may be cited where,, in the: prevailing opinion, this'rule of. construction is in part relied-upon,, which .have been affirmed in the Court of Appeals without: opinion^, [367]*367but the affirmance in the Court of Appeals was not in any case a necessary approval of this construction of the statute.
On the other hand, in Matter of Cornell, decided in this court and reported in 66 Appellate Division, 169, Mr. Justice Chase, in writing for the court, says : “ 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 _tkat 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
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Smith, J.:
That Rufus King Palmer .took the property under this assignment for the purpose of. passing the property to the widow and children of John Palmer in precise accordance with the plan of distribution in the will of John Palmer seems 'to 'me of irresistible inference. With a widow, two sons and a daughter, John Palmer never gave that property absolutely to his son Rufus. Moreover, Rufus swears upon the stand that there was an understanding which he does not admit amounted to an agreement that lie would tape care of his mother, brother and sister “in the same manner as * * * decedent had always done.” .From the date of the transfer upon January tenth until the time of John Palmer’s death not one act of Rufus in the handling of this property is that of an independent owner. On 'the contrary, every act is in accord with the recognition on his part that the. property was his father’s and that the transfer was simply a means to accomplish the passing of the property to' his father’s heirs. The bank accounts remained in the name of his father until his father directed Rufus to give to him a bank slip upon which he directed the accounts to be transferred to “ John Palmer 'or Rufus K. Palmer, payable to either, or survivor ■of either.” This fact of itself is not without significance of the fact that the act was done “ in contemplation of * * * death.” The securities of the deceased were not changed from the safe deposit box of John Palmer until they' were put into a safe deposit box in the name of Rufus Palmer, William S. Hackett and Edward G. Sherley, who happened tobe the trustees named in the will of John Palmer. These securities were put in this safe deposit box under the condition that they could be drawn, not by Rufus alone, but only by two of the three trustees. The exact nature of that trust [365]*365is not shown. Upon this point the son Bufus is evasive. If he made the trust of his own volition it is inconceivable that he should be unable to state its exact terms. If the trust were, however, for the purpose of carrying out the provisions of the will of John Palmer there is good reason why the exact terms of the trust should not here be shown and the respondents aré the only ones who have the power of showing by direct evidence just the extent and nature of that trust. After the death of his father the remaining securities belonging to the estate were placed in the same trust box although they must be administered undér the direction of the trust contained in the will. Again, all income collected from securities was divided by Bufus between his mother, his brother and sister, and himself, as is evident, under his father’s direction either under the terms upon which he originally took the property or at tho time of the collection of the moneys. After the death of John Paliner Bufus Palmer makes affidavit in which he states that the property of his father amounts to $84,000 which includes these three bank accounts which had been placed by direction of his father in the name of his father and himself “ Payable to either or survivor of either.” The inconsistency of the position that these bank accounts belonged to the father and that the rest of the property was his absolute property did not appear so clearly to Bufus as it did afterwards to Ins counsel who advised him that the property under the assignment was all his property except ^he small amount which he did not accept and remove from his father’s safe deposit box.
It may be that John Palmer was not anticipating immediate death. He had been sick, however, for many years and for the last fourteen months prior to the making of this assignment he had been much worse. His mind was affected and Ins physical infirmity increased. That he was contemplating the contingency of death when he made this transfer seems to me undoubted. The absolute transfer with the secret trust, the apparent subsequent direction by him of the estate, the grasp that he still held upon the bank accounts, the transfer of the securities to the same trustees designated in his will before his death, pass .beyond suspicion and point unerringly to an intent upon his part to provide for the passing of his estate after he was gone. The - only reason assigned by these respondents for this transfer is that the estate had become a burden [366]*366upon him and as he had full confidence in Rufus he wanted, to pass' it over to his hands. This reason, however, has little weight when it appears that for fifteen years the son Rufus in whom he had so great confidence held a general power of attorney and could with equal force have accomplished his purposes under that power of attorney as under the formal assignment made. If this order of the surrogate stands, a man facing death has by indirection bequeathed his property and evaded payment of his share of the burden of taxation. As against just such transfers, as I understand, the Legislature intended to provide .when it declared subject to taxation transfers made in' contemplation of death.
The respondents urge certain legal objections to a construction of this gift as made in contemplation of death. That the gift was in form inter vivos rather than causa mortis is clearly shown. The delivery of the inventory with.the assignment thereupon was a. sufficient delivery to complete the gift. That the gift was in trust and1, not to Rufus absolutely would be held by any court, wheresoever' the question should arise, upon the testimony of Rufus himself and upon his subsequent conduct, which gives color to the motive of the ■ gift. That trust, however, was not a trust fór Jphn Palmer so much as it was a trust for his widow and next of kin and, therefore,, that trust does not come within the condemnation of the trust in the case, of Matter of Cornell (170 N. Y. 423) or the case of Matter of Brandreth (169 id. 437).
It is strenuously urged, however, that this expression “ in contemplation of * * * death ” under the authorities refers simply to a gift causa mortis and does not include a gift inter vivos. This contention is not unsupported by authority. Such a construction was given to the phrase in Matter of Seaman (147 N. Y. 76, 77). In that case,, however, the'question did not arise in the same way as it,, is here presented. It was not necessary there -to decide that a gift inter vivos made before death and for the purpose of avoiding-the payment of this tax would not be a gift in contemplation of. death. In Matter of Edgerton (35 App. Div. 125), Merwin, J., in our own court seems in part to recognize this as the rule of law Other cases in the Appellate Division, may be cited where,, in the: prevailing opinion, this'rule of. construction is in part relied-upon,, which .have been affirmed in the Court of Appeals without: opinion^, [367]*367but the affirmance in the Court of Appeals was not in any case a necessary approval of this construction of the statute.
On the other hand, in Matter of Cornell, decided in this court and reported in 66 Appellate Division, 169, Mr. Justice Chase, in writing for the court, says : “ 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 _tkat 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.” While this decision was reversed the construction of the statute thus given was not overruled. Under chapter 713 of the Laws of 1887 (amdg. Laws of 1885, chap. 483) the language of the statute (§ 1) provided for the taxation of gifts “ intended to take effect * * * after * * * death.” This language was construed in Matter of Edwards (85 Hun, 436) to include gifts causa mortis. In 1891, however, the statute was amended to make subject to the tax also transfers “ made in contemplation of * ■* * death.” (Laws of 1891, chap. 215, amdg; Laws of 1885, chap. 483, § 1, as amd. by Laws of 1887, chap. 713.) If, under the act of 1887, gifts causa mortis were taxable, it would seem that the amendment of 1891 intended to add something to the statute. To hold that that refers alone to gifts causa mortis would be to hold that such amendment was surplusage and added nothing. This is the view taken of the statute in Matter of Birdsall (22 Misc. Rep. 180), wherein Surrogate Woodbury holds that a gift inter vivos made for the purpose of avoiding the tax was taxable under the statute. (See Laws of 1892, chap. 169, amdg. Laws of 1885, chap. 483, § 1, as amd. supra, and Laws of 1892, chap. 399, § 1, subd. 3.)
Finally, the respondents contend that the burden of proof is with the Comptroller to show that this gift was made in contemplation of. death and'that the only positive evidence is to the contrary. Efforts to evade the law are secret and hot public. Witnesses are not called" in to attest them. . The- evidence to prove the same must of necessity be'circumstantial rather than direct and such circumstantial a x evidence may overbear the positive testimony of an interested party Who swears to the contrary. The effect of this transfer is to pass . the property to the next, of kin- of the deceased exactly as it' would •have passed by will had this transfer not been before made. There. [369]*369is no moral reason why this property should not be taxed as though the property had passed three months later by the will of the deceased. Courts should not be over zealous to protect an estate from taxation and to shield parties by a presumption of innocence where no other rational motive for a transfer is shown, and no reason appears why the estate itself should not bear its just proportion of the public burden. The final order ■ or decree of the surrogate should be reversed on the law and facts, and the matter be remitted to .the surrogate for disposition in accordance herewith.
Kellogg and Cochrane, JJ-., concurred in result; Chester, J., dissented; Parker, P. J., not sitting.
These statutes were revised in Tax Law (Laws of 1896, chap. 908) § 220, subd. 8, as amd. by Laws of 1897, chap. 284.— [Rep.