Marcus, S.
This is an appeal- from an order entered herein fixing the transfer tax.
The testator was born on the 24th day of February, 1800, and at the time of his death was a widower with three children, who are people of middle life. He had never been sick nor had a doctor until the middle of March, 1897, and seems to have transacted his business personally until that time. He had no disease, and died of old age. One morning in November of 1895 the testator called one of his sons into the banking office and told' him he had got to be a “ pretty old man,” or a “ very old man,” and his estate had got to be a burden to him; that he intended to give-it ultimately to his children, and purposed to give some of it now. The son took the securities given to him by his father for the benefit of the children, and locked them up in a box, where his father formerly kept them. This box was then labeled .with-., the-names of . all threev-children and [362]*362kept, in the same-place until the fall of 1896, when it was transferred to the safe deposit vaults of the Marine Bank. Erom the-'time of the. gifts to the time of his death, the testator never saw the securities, or had anything to do with them. The box was then taken in the name of the donees, who had the combination, so that any of them had access to the box containing the securities. The interest coupons payable on and after the 1st of January, 1897, were collected by and paid to the beneficiaries of the gift. The total amount of the gifts in question amounted to $1,500,000, and -were given on two occasions. The first gift amounted to $1,038,900, and the second gift such an additional amount, as to make the gift to each of the three children $500,000. After the gifts mentioned, the two sons were assessed on the city assessment-rolls $30,000 each, and the assessment on the father’s estate reduced $100,000. Some of the-securities were sold by the donees before the testator’s death. The testator left a will bequeathing the bulk of his estate tothe three children'mentioned, which will disposed of upward of $3,000,000. '
This appeal is to determine the taxing of the gifts mentioned.
It is contended on the part of the appellants that the gifts made by the testator were valid, absolute and sufficient to transfer all titles to the securities in the donees, thereby becoming their property. That the testator’s estate has no right or claim to the same whatsoever, and they are, therefore, not taxable as assets of the estate in the hands of the. executors.
It is urged' on the part of the estate that the gifts were “ in ■contemplation of death.”
Pennsylvania and Illinois have 'provisions similar to the New York laws for a tax on transfers made “ in contemplation of death.” It became part of our laws by chapter 215 of the Laws of 1891, and so far has had no judicial interpretation which I have been able to discover. This provision of thé statute is,- therefore, novel.
[363]*363From the testimony taken before the appraiser I am satisfied that the gifts under consideration were not gifts causa mortis, since they had not all the necessary elements to so characterize them. The discussion of the question, therefore, must determine whether gifts inter vivos are included Avithin the meaning of the act.
It is conceded that the statute contemplates gifts causa mor-tis. It is not claimed on' the part of the State that,the property transferred, and which is now in question, was such a gift.
Gifts causa mortis are of a mixed character; they partake of: the character of gifts inter vivos from delivery, which is essen-tia] to their validity; and yet this single feature, as assimilating them to ordinary donations, merely characterizes the mode of the thing and not its type and quality. Bloomer v. Bloomer, 2 Bradf. 346.
It being conceded that the gift was not causa mortis nor a gift intended to take effect in possession or enjoyment at or after death, the question must be determined whether a gift-inter vivos — the donor dying weeks, months or years thereafter —can have “ contemplation of death ” attached to it to defeat,, in part, the purpose of the gift and bring it within the Transfer Tax Act, or reversely defeat the Transfer Tax Act and free the gift from the tax, when the testimony shows an absolute .and. irrevocable gift; whether old age, per se, makes all gifts con-, vertible into ’ gifts “ in contemplation of death ” for the pur-, poses of taxation, irrespective of any intention on the part of the donor.
It must not be forgotten that alienability is one of the essential qualities of property, and allows the owner to control its ¡ disposition and freely give his property to whomever he pleases, limited, perhaps, to the right of creditors. . ; , .
This is a special tax law. Matter of McPherson, 104 N. Y. 317.
All such laws must be clear and unmistakable in their mean[364]*364ing, for a citizen cannot be subjected to special burdens without a clear warrant of law. Matter of Eysaman, 113 N. Y. 18.
Determining as I have that the- testimony has failed to satisfy me that the gift, was in contemplation of death, or causa, mortis, it must now be considered how far, if at all, this law applies to gifts other than causa mortis. This brings up the question squarely, and at once suggests that if another view is taken, so that all gifts will be comprehended by the Transfer Tax Act — if it be intended to cover all gifts made inter vivos— what form of testimony will be necessary from which a fair conclusion may be drawn that will protect administrators from being unjustly obliged to subject their trusts to the succession tax on the one hand and the State from receiving its due on the other. All gifts are inter vivos except those causa mortis. A gift causa mortis differs from a gift inter vivos not only with reference to- the condition of death but in further being subject to r&vocation by the donor himself, and requiring that the donee shall actually survive him. The line is often dim which distinguishes gifts causa mortis and those, though inter vivos, having allied to them some of the. other’s elements.
What form of testimony will mark the line of the beginning and end of that unfailing thought “ in contemplation of death ?’’
Death is the subject of much contemplation by all who reach maturity, when, about to dispose of any considerable property to their next of kin. If (other gifts than causa mortis are included in the statute, what cases does it cover ? What controls ? Is it the age of the party ? The condition of his health ? The casiial remark made by him at the time? Why not include advancements given months or years before decease, though psychologically given in contemplation of death? How could the tax be collected?
A special statute passed for the purposes of taxation should not have such a forced construction.
The original act (chapter 483 of the Laws of 1885) and all. amendments thereto down to 1891, refer only to. property pass[365]*365ing by will, or intestacy, or transfer by deceased, “ made or intended to take effect in possession or enjoyment after the death of tbe grantor or bargainor.”
There is no material change in the act of 1891, except the words “ the gifts made in contemplation of death,” etc.
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Marcus, S.
This is an appeal- from an order entered herein fixing the transfer tax.
The testator was born on the 24th day of February, 1800, and at the time of his death was a widower with three children, who are people of middle life. He had never been sick nor had a doctor until the middle of March, 1897, and seems to have transacted his business personally until that time. He had no disease, and died of old age. One morning in November of 1895 the testator called one of his sons into the banking office and told' him he had got to be a “ pretty old man,” or a “ very old man,” and his estate had got to be a burden to him; that he intended to give-it ultimately to his children, and purposed to give some of it now. The son took the securities given to him by his father for the benefit of the children, and locked them up in a box, where his father formerly kept them. This box was then labeled .with-., the-names of . all threev-children and [362]*362kept, in the same-place until the fall of 1896, when it was transferred to the safe deposit vaults of the Marine Bank. Erom the-'time of the. gifts to the time of his death, the testator never saw the securities, or had anything to do with them. The box was then taken in the name of the donees, who had the combination, so that any of them had access to the box containing the securities. The interest coupons payable on and after the 1st of January, 1897, were collected by and paid to the beneficiaries of the gift. The total amount of the gifts in question amounted to $1,500,000, and -were given on two occasions. The first gift amounted to $1,038,900, and the second gift such an additional amount, as to make the gift to each of the three children $500,000. After the gifts mentioned, the two sons were assessed on the city assessment-rolls $30,000 each, and the assessment on the father’s estate reduced $100,000. Some of the-securities were sold by the donees before the testator’s death. The testator left a will bequeathing the bulk of his estate tothe three children'mentioned, which will disposed of upward of $3,000,000. '
This appeal is to determine the taxing of the gifts mentioned.
It is contended on the part of the appellants that the gifts made by the testator were valid, absolute and sufficient to transfer all titles to the securities in the donees, thereby becoming their property. That the testator’s estate has no right or claim to the same whatsoever, and they are, therefore, not taxable as assets of the estate in the hands of the. executors.
It is urged' on the part of the estate that the gifts were “ in ■contemplation of death.”
Pennsylvania and Illinois have 'provisions similar to the New York laws for a tax on transfers made “ in contemplation of death.” It became part of our laws by chapter 215 of the Laws of 1891, and so far has had no judicial interpretation which I have been able to discover. This provision of thé statute is,- therefore, novel.
[363]*363From the testimony taken before the appraiser I am satisfied that the gifts under consideration were not gifts causa mortis, since they had not all the necessary elements to so characterize them. The discussion of the question, therefore, must determine whether gifts inter vivos are included Avithin the meaning of the act.
It is conceded that the statute contemplates gifts causa mor-tis. It is not claimed on' the part of the State that,the property transferred, and which is now in question, was such a gift.
Gifts causa mortis are of a mixed character; they partake of: the character of gifts inter vivos from delivery, which is essen-tia] to their validity; and yet this single feature, as assimilating them to ordinary donations, merely characterizes the mode of the thing and not its type and quality. Bloomer v. Bloomer, 2 Bradf. 346.
It being conceded that the gift was not causa mortis nor a gift intended to take effect in possession or enjoyment at or after death, the question must be determined whether a gift-inter vivos — the donor dying weeks, months or years thereafter —can have “ contemplation of death ” attached to it to defeat,, in part, the purpose of the gift and bring it within the Transfer Tax Act, or reversely defeat the Transfer Tax Act and free the gift from the tax, when the testimony shows an absolute .and. irrevocable gift; whether old age, per se, makes all gifts con-, vertible into ’ gifts “ in contemplation of death ” for the pur-, poses of taxation, irrespective of any intention on the part of the donor.
It must not be forgotten that alienability is one of the essential qualities of property, and allows the owner to control its ¡ disposition and freely give his property to whomever he pleases, limited, perhaps, to the right of creditors. . ; , .
This is a special tax law. Matter of McPherson, 104 N. Y. 317.
All such laws must be clear and unmistakable in their mean[364]*364ing, for a citizen cannot be subjected to special burdens without a clear warrant of law. Matter of Eysaman, 113 N. Y. 18.
Determining as I have that the- testimony has failed to satisfy me that the gift, was in contemplation of death, or causa, mortis, it must now be considered how far, if at all, this law applies to gifts other than causa mortis. This brings up the question squarely, and at once suggests that if another view is taken, so that all gifts will be comprehended by the Transfer Tax Act — if it be intended to cover all gifts made inter vivos— what form of testimony will be necessary from which a fair conclusion may be drawn that will protect administrators from being unjustly obliged to subject their trusts to the succession tax on the one hand and the State from receiving its due on the other. All gifts are inter vivos except those causa mortis. A gift causa mortis differs from a gift inter vivos not only with reference to- the condition of death but in further being subject to r&vocation by the donor himself, and requiring that the donee shall actually survive him. The line is often dim which distinguishes gifts causa mortis and those, though inter vivos, having allied to them some of the. other’s elements.
What form of testimony will mark the line of the beginning and end of that unfailing thought “ in contemplation of death ?’’
Death is the subject of much contemplation by all who reach maturity, when, about to dispose of any considerable property to their next of kin. If (other gifts than causa mortis are included in the statute, what cases does it cover ? What controls ? Is it the age of the party ? The condition of his health ? The casiial remark made by him at the time? Why not include advancements given months or years before decease, though psychologically given in contemplation of death? How could the tax be collected?
A special statute passed for the purposes of taxation should not have such a forced construction.
The original act (chapter 483 of the Laws of 1885) and all. amendments thereto down to 1891, refer only to. property pass[365]*365ing by will, or intestacy, or transfer by deceased, “ made or intended to take effect in possession or enjoyment after the death of tbe grantor or bargainor.”
There is no material change in the act of 1891, except the words “ the gifts made in contemplation of death,” etc.
It has been held that the tax imposed by the act of 1885 is not a property tax, but a tax upon the right of succession under a will, or devolution in case of intestacy. Matter of Swift, 137 N. Y. 77.
The jurisdiction for the collection of the tax is conferred on the Surrogate’s Court, the jurisdiction of which is confined to decedent’s estates.
The payment of the tax has always been imposed on the executor, administrator or trustee, though likewise on the property transferred. They are made personally liable for the payment of the same until the tax is paid; nor are they entitled to a final settlement of an estate until such tax is paid. They are empowered to sell the decedent’s property to pay the tax.
The surrogate shall appoint an appraiser to “ fix the fair market value (at the time of the transfer thereof) of property of persons whose estates shall be subject to the payment of any tax imposed by this article.” Tax Law, sec. 230.
The provisions of the law' under discussion relate exclusively to the method of procedure for determining the market value of the property of decedents and the succession tax to be paid thereon.
It is silent as to any provisions for appraisal or determination of a tax on a gift inter vivos.
If the property which is now sought to be relieved of the tax imposed by the appraiser had been given by the testator to collateral relatives or strangers not named in the will, how could it be reached to pay the tax ? From what time would the tax be due ? What penalties w’ould it cany by way of interest ? How would it be appraised? As of what date is its value to be appraised ? Could the executors be held responsible for what [366]*366never came.to their possession? Surely it could not be taken from the beneficiaries under the will. It seems clear that the statute is one based on the theory that those having in charge the estate of a decedent should pay taxes on the property in their hands and under their control. ' ■
Reading the statute as a whole it seems that it has to do with death and dead men’s estates, and that it does not. contemplate reaching property transferred by gift or otherwise among the living.
The statute .is inadequate in its provisions for reaching property not in process of distribution, but which has passed into the hands of donees of gifts inter vivos and is beyond the reach and control of those in charge of the administration of an estate.
Gifts apparently inter vivos may nevertheless have attached to them such conditions and circumstances that clearly bring them within the statute, and I think a fair construction of this act would obviously cover gifts inter vivos where a party, is in extremis. That, perhaps, is the extreme to which, the. act .could be stretched and yet kept within the rule which requires that the State shall show clear warrant for taxing property of .the.citizen under this special law.
Gifts inter vivos intended to take effect at or after .death- are comprehended by this act and really by the words of -the statute, “ in contemplation of death.”
The Court of Appeals in Matter of Seaman, 147 N. Y. 69, declared that the statute reaches all gifts causa mortis, and it would seem gifts inter vivos, which are made in extremis, mighfc likewise be included..
It has been earnestly urged on the part of the State .that unless it is.held that-the-gifts,vas 'made’-byThis-testator,' are'declared to be. “ in contemplation of death,” the state will, lose thousands of dollars, since -anyone' on the. .eve of death' can transfer 'property without condition, and defeat the purpose of this act. ..... - ... ...
[367]*367The testator was at the time of these gifts a very, wealthy man, and it must be apparent, not alone from the evidence, but the gifts, themselves, that he-desired to b,e rid of the burden of his estate, in part, at least. If the transfers were made with the intention to deprive the State of the- tax due on .the property of which he might die possessed,, these gifts might well have been of the greater part of what he possessed .without, retaining upward of $3,000,000. ' He was a man advanced in years and of few personal wants, so that these millions were unnecessary to him. lie could readily have defeated the statute without any inconvenience to himself. . ' •
If this form of disposing of property becomes disastrous to the purposes of the statute, the legislature can easily remedy it. by arbitrarily fixing a time from which all gifts may be de.-clared void in so- far as relieving them from- the tax in question-.
In Louisiana, “ No donations inter vivos .or- causa mortis can exceed two-thirds of the- property, if the .disposer having no children leave a father, mother or wife.”
There is no clear warrant in the law for■ taking,-$15,000 from the estate of the testator to pay a tax upon property which had passed beyond the control- and custody of the testator irrevocably long before his death. ; • »
If all the children of the testator, after receiving the gift of $500,000 each, had died before the testator, there would be no question but what it would have been subject to the tax. Could it be claimed that after their estates had paid the tax on this property it could again be taxed as a part of the estate of the father, he surviving the children ? This seems to be a fair test.
So far as the reported cases throw any light on this subject they seem to sustain the claim that the.'statute, applies to gifts causa, mortis, or dispositions of property, like trusts or settlements, intended to take effect after death;. but thp, statute does not seem to- warrant the reaching of gifts inter vivos.
Manifestly there can, be no warrant for taxing the property [368]*368of the children, and yet regard it as a part of the estate of the testator.
I am satisfied that the statute does not cover the case presented, and that the testator had no interest in the $1,500,000 which he gave to his children long before his death, and, therefore, the executors cannot be made to pay a tax within the statute, or any decision under it.
The decision in the Matter of Birdsall, 22 Misc. Rep. 180, ante, p. 293, by the surrogate of Chautauqua county, had to do with-.a. gift causa-mor-tis, .as I read it. What is said, therefore, of gifts inter vivos, is obiter dicta, to the Birdsall case.
The reason underlying .the law, the reasonable construction of the statute itself, the circumstances of this case, and every consideration that should weigh in rendering a judgment between the State and the executors of an estate, alike determine this case in favor of the executors.
So much of the appraisers’ report as taxes $1,500,000 is hereby set aside.
Decreed accordingly.
Note. — This decision was affirmed by the Appellate Division in 49 App. Div. 541