Henderson, J.,
John Wanamaker died on Dec. 12, 1922, having on Dec. 14, 1920, assigned to his son Rodman the entire capital stock of the corporation known as John Wanamaker Philadelphia, appraised for transfer inheritance tax purposes at $30,000,000, and having on the same date assigned to a trustee for his two daughters $1,000,000 in preferred stock of this corporation.
The tax having been assessed, an appeal was taken, and thereafter in an adjudication the appeal was sustained and the action of the appraiser for the Commonwealth in assessing the tax reversed. The exceptions challenge this action of the presiding judge.
The position of the Commonwealth may be stated in the language of the brief of its counsel:
1. Did John Wanamaker absolutely and without reservation transfer the title, possession and enjoyment of the shares of common and preferred stock of John Wanamaker Philadelphia in his lifetime?
2. Do the facts and circumstances of the transfer show that the donor’s condition was such that he might reasonably have expected death at any time?
3. Was the disposition of the property such as the donor contemplated making in the event of death, or was the disposition of the property such as he might reasonably be supposed to have desired to be made at his death?
4. Was there any moving cause for making the transfer at the time such transfer was made other than the fact that the donor’s condition was such that he might reasonably expect death at any moment?
5. Upon a review of the entire evidence, is there a substantial dispute of fact as to whether or not John Wanamaker parted with the title, possession and enjoyment of the shares of stock in his lifetime? And
6. Should the Orphans’ Court direct an issue to the Court of Common Pleas for a trial of facts by a jury?
[576]*576Before proceeding to a consideration of the law involved, we will briefly answer these queries.
1. John Wanamaker did absolutely and without reservation transfer the shares of stock in this corporation in his lifetime. The presiding judge has found that these transfers were fully consummated by conveyance of title and that absolute and exclusive possession of the shares was taken by the respective assignees. We find no evidence to the contrary.
2. At the time the transfers were made John Wanamaker had no reason to expect impending death. There is ample evidence to support this finding and no evidence upon which a finding to the contrary could be based.
3. While there is no direct evidence that the disposition of these shares of stock was such as he might reasonably be supposed to have desired to be made at his death, nevertheless, the drawing of such an inference would probably be in keeping with his real intent. These transfers were not made in contemplation of death specially, but were possibly made in contemplation of death generally. There is no evidence upon which a finding could be based that the transfers were made in contemplation of death specially.
4. We have found that John Wanamaker was not in immediate contemplation of death, and there is no evidence that would warrant a finding that he thought his death was impending; the origin of the moving cause of the transfers was the reorganization of his business affairs so as to solidify his credit resources, and as a further moving cause it might be said that the disposition of this property was in contemplation of death generally.
5. The question — upon a review of the entire evidence — is there a substantial dispute of fact as to whether the decedent parted with the title, possession and enjoyment of these stocks in his lifetime, has practically been eliminated by the findings of the presiding judge upon sufficient evidence; and this finding will not be disturbed in the absence of clear error.
6. We do not know of any authority under which, under any state of facts, an issue to the Court of Common Pleas may be demanded as of right in tax appeals. This question will be further elaborated in our discussion of the law relating to this case.
The argument for the Commonwealth appears, as was stated by the presiding judge, to rest upon inference and innuendo. It is argued that Mr. Wanamaker would not have been likely to give away most of his fortune without some understanding with his son Rodman for his protection in case Rodman predeceased him, and that a secret trust must have been entered into. If such an agreement existed, the fund would undoubtedly be taxable, but there is not a scintilla of testimony to this effect.
It is contended that there were instances in the management of the various Wanamaker corporations when stock certificates were made out as evidence of transfers and thereafter canceled because of non-delivery, or for some other reason, and at least there was opportunity here for some such manipulation, and that the appellants had been permitted to put two witnesses back on the stand to correct their testimony. It has been ruled many times that opportunity is not evidence, and conjecture and suspicion do not take the place of testimony; furthermore, the transfer of these shares, both common and preferred, was completed on the books of the corporation, and the receipt for the new certificate duly signed by Rodman Wanamaker on the stub of the certificate book bearing even date with that of the transfer.
Permission for the witnesses to correct their testimony was well within the discretion of Presiding Judge Gest; and their credibility, he having seen and heard them, was peculiarly for him to judge.
[577]*577The position of the Commonwealth is two-fold:
1. That the tax is due if Wanamaker made the transfers with the shadow of death upon him ; that is, in special contemplation of death. This argument may be dismissed because there is no evidence that such was the case, and because the findings of Judge Gest contra are clear and satisfactory, as is also his interpretation of the meaning of the phrase “in contemplation of death.”
2. That the tax is due because the transfers were made in contemplation of death generally, and were such as he might reasonably be supposed to have desired to be made at his death.
This latter question must be resolved by an examination of the Act of June 20, 1919, P. L. 521, and the decisions of our Supreme Court. The title of this act is: “Providing for the imposition and collection of certain taxes upon the transfer of property passing from a decedent who was a resident of this Commonwealth at the time of his death, and of property within this Commonwealth of a decedent who was a non-resident of the Commonwealth at the time of his death. . . .”
This question arises under section 1(c), whereunder the tax is imposed: “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.”
In Spangler’s Estate, 281 Pa. 118, Mr. Justice Simpson, speaking for our Supreme Court, held that absolute and unconditional gifts were not within the purview of this act, saying: “. . . a bona fide
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Henderson, J.,
John Wanamaker died on Dec. 12, 1922, having on Dec. 14, 1920, assigned to his son Rodman the entire capital stock of the corporation known as John Wanamaker Philadelphia, appraised for transfer inheritance tax purposes at $30,000,000, and having on the same date assigned to a trustee for his two daughters $1,000,000 in preferred stock of this corporation.
The tax having been assessed, an appeal was taken, and thereafter in an adjudication the appeal was sustained and the action of the appraiser for the Commonwealth in assessing the tax reversed. The exceptions challenge this action of the presiding judge.
The position of the Commonwealth may be stated in the language of the brief of its counsel:
1. Did John Wanamaker absolutely and without reservation transfer the title, possession and enjoyment of the shares of common and preferred stock of John Wanamaker Philadelphia in his lifetime?
2. Do the facts and circumstances of the transfer show that the donor’s condition was such that he might reasonably have expected death at any time?
3. Was the disposition of the property such as the donor contemplated making in the event of death, or was the disposition of the property such as he might reasonably be supposed to have desired to be made at his death?
4. Was there any moving cause for making the transfer at the time such transfer was made other than the fact that the donor’s condition was such that he might reasonably expect death at any moment?
5. Upon a review of the entire evidence, is there a substantial dispute of fact as to whether or not John Wanamaker parted with the title, possession and enjoyment of the shares of stock in his lifetime? And
6. Should the Orphans’ Court direct an issue to the Court of Common Pleas for a trial of facts by a jury?
[576]*576Before proceeding to a consideration of the law involved, we will briefly answer these queries.
1. John Wanamaker did absolutely and without reservation transfer the shares of stock in this corporation in his lifetime. The presiding judge has found that these transfers were fully consummated by conveyance of title and that absolute and exclusive possession of the shares was taken by the respective assignees. We find no evidence to the contrary.
2. At the time the transfers were made John Wanamaker had no reason to expect impending death. There is ample evidence to support this finding and no evidence upon which a finding to the contrary could be based.
3. While there is no direct evidence that the disposition of these shares of stock was such as he might reasonably be supposed to have desired to be made at his death, nevertheless, the drawing of such an inference would probably be in keeping with his real intent. These transfers were not made in contemplation of death specially, but were possibly made in contemplation of death generally. There is no evidence upon which a finding could be based that the transfers were made in contemplation of death specially.
4. We have found that John Wanamaker was not in immediate contemplation of death, and there is no evidence that would warrant a finding that he thought his death was impending; the origin of the moving cause of the transfers was the reorganization of his business affairs so as to solidify his credit resources, and as a further moving cause it might be said that the disposition of this property was in contemplation of death generally.
5. The question — upon a review of the entire evidence — is there a substantial dispute of fact as to whether the decedent parted with the title, possession and enjoyment of these stocks in his lifetime, has practically been eliminated by the findings of the presiding judge upon sufficient evidence; and this finding will not be disturbed in the absence of clear error.
6. We do not know of any authority under which, under any state of facts, an issue to the Court of Common Pleas may be demanded as of right in tax appeals. This question will be further elaborated in our discussion of the law relating to this case.
The argument for the Commonwealth appears, as was stated by the presiding judge, to rest upon inference and innuendo. It is argued that Mr. Wanamaker would not have been likely to give away most of his fortune without some understanding with his son Rodman for his protection in case Rodman predeceased him, and that a secret trust must have been entered into. If such an agreement existed, the fund would undoubtedly be taxable, but there is not a scintilla of testimony to this effect.
It is contended that there were instances in the management of the various Wanamaker corporations when stock certificates were made out as evidence of transfers and thereafter canceled because of non-delivery, or for some other reason, and at least there was opportunity here for some such manipulation, and that the appellants had been permitted to put two witnesses back on the stand to correct their testimony. It has been ruled many times that opportunity is not evidence, and conjecture and suspicion do not take the place of testimony; furthermore, the transfer of these shares, both common and preferred, was completed on the books of the corporation, and the receipt for the new certificate duly signed by Rodman Wanamaker on the stub of the certificate book bearing even date with that of the transfer.
Permission for the witnesses to correct their testimony was well within the discretion of Presiding Judge Gest; and their credibility, he having seen and heard them, was peculiarly for him to judge.
[577]*577The position of the Commonwealth is two-fold:
1. That the tax is due if Wanamaker made the transfers with the shadow of death upon him ; that is, in special contemplation of death. This argument may be dismissed because there is no evidence that such was the case, and because the findings of Judge Gest contra are clear and satisfactory, as is also his interpretation of the meaning of the phrase “in contemplation of death.”
2. That the tax is due because the transfers were made in contemplation of death generally, and were such as he might reasonably be supposed to have desired to be made at his death.
This latter question must be resolved by an examination of the Act of June 20, 1919, P. L. 521, and the decisions of our Supreme Court. The title of this act is: “Providing for the imposition and collection of certain taxes upon the transfer of property passing from a decedent who was a resident of this Commonwealth at the time of his death, and of property within this Commonwealth of a decedent who was a non-resident of the Commonwealth at the time of his death. . . .”
This question arises under section 1(c), whereunder the tax is imposed: “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.”
In Spangler’s Estate, 281 Pa. 118, Mr. Justice Simpson, speaking for our Supreme Court, held that absolute and unconditional gifts were not within the purview of this act, saying: “. . . a bona fide and unconditional transfer by deed or gift, which has been fully consummated by conveyance of the title, and absolute and exclusive possession of the property taken by the transferee, is not within the purview of the statute,” because it is not “ 'to take effect in possession or enjoyment at or after such death.’ ”
This would seem to rule the instant case as one of an absolute gift, but the Commonwealth contends that it does not apply because the gifts which are the subject of these appeals were such a final disposition of the bulk of his estate as he might have made by will. It is argued that he was eighty-three and by common knowledge was approaching the end of his life’s span, and even though the shadow of death was not upon him, nevertheless, his years were numbered. This situation was present in Spangler’s Estate, 281 Pa. 118, wherein the decedent, although in usual health, was over one hundred years of age when he made absolute gifts to his family, .and it was held they were not taxable.
The title of this act limits it to property passing from a decedent at the time of his death, and the body of the act may be no broader. Assuming the gift to be absolute and not made with death impending, the question of age has no bearing on the taxability of the gift. Gifts should be encouraged, not discouraged by taxation, and most legislatures would be loath to tax them. Wanamaker was well within his rights in making the gifts complained of herein.
In its answers the Commonwealth prays for a prascept to the Court of Common Pleas in order that a jury may pass on issues of fact. While we agree with the presiding judge that there are no facts in dispute, nevertheless, it should be pointed out that there is no practice warranting the award of an issue as of right in tax appeals. The learned counsel for the Commonwealth contend for this right under section 21(b) of the Act of June 7, 1917, [578]*578P. L. 363, which provides: “Whenever a dispute upon a matter of fact arises before any Orphans’ Court, on appeal from any register of wills, or on removal from any register of wills by certification, the said court shall, at the request of either party, direct a prascept for an issue to the Court of Common Pleas of the county for the trial thereof, which, in the case of an issue devisavit vel non, shall be substantially in the following form: . . . Where the issue directed is other than an issue devisavit vel non, the foregoing form shall be changed, so far as necessary, in accordance with the circumstances of the case.”
It is argued that the last clause comprehends appeals in other matters than issues devisavit vel non. This is true, as, for instance, an issue as to domicile: See Price v. Price, 156 Pa. 617.
In our opinion, this act does not apply to tax appeals, because they are not appeals from any act of the register. He is merely the agent of the Commonwealth which imposes the tax. By article II, section 10, of the Act of June 20, 1919, P. L. 521, it is provided: “The register of wills of the county in which letters testamentary or of administration are granted upon the estate of any person dying seized or possessed of property while a resident of the Commonwealth shall appoint an appraiser, whenever occasion may require, to appraise the value of the property or estate of which such decedent died seized or possessed and hereinbefore subjected to tax. Such appraiser shall make a fair, conscionable appraisement of such estate, and assess and fix the cash value of all annuities and life estates growing out of said estate, upon which annuities and life estates the tax imposed by this act shall be immediately payable out of the estate at the rate of such valuation.”
Section 21 of the same article appoints the register the agent of the Commonwealth for the collection of these taxes.
An examination of the record will disclose the part played by the register. On page 7a will be found his order appointing the appraiser. The appraisement is not made by the register, but by the appraiser. On page 22a- the docket of the register shows this entry: “1926, May 20 — Inheritance tax appraisement filed in the sum of $811,475.71.”
Thus it is seen the register performs no function other than as agent of and on behalf of the Commonwealth to appoint the appraiser. This agency is recognized by Mr. Justice Sadler in Leach’s Estate, 282 Pa. 545, 547, when he says: “The Commonwealth seeks to recover collateral inheritance tax from the estate of J. Granville Leach based on an appraisement made (or rather caused to be made) on its behalf by the Register of Wills. . . .”
The right of appeal to this court in tax appraisements is given by section 13 of this act, which is as follows: “Any person not satisfied with any appraisement of the property of a resident decedent may appeal, within thirty days, to the Orphans’ Court, on paying or giving security to pay all costs, together with whatever tax shall be fixed by the court. Upon such appeal, the court may determine all questions of valuation and of the liability of the appraised estate for such tax, subject to the right of appeal to the Supreme or Superior Court.”
In Warden’s Estate, 25 Dist. R. 1000, holding that the Commonwealth could not appeal from the appraisement for inheritance tax, Judge Copeland said: “This case is indicative of the fact that the assessment of collateral inheritance tax is the act of the Commonwealth, and that the legal representatives or parties in interest have no right to be present or to appear before the Commonwealth’s assessor. . . . The State is generally presumed to be [579]*579satisfied by the acts of her own officers or appointees, and in very few cases is an appeal given from their action.”
Rittenhouse’s Estate, 36 Montg. Co. Law Repr. 89, is to the same effect. Therein Judge Miller said: “The appraiser, who was appointed by the Register of Wills to fix the values of the estate subject to the tax, was, in effect, the representative of the Commonwealth, and it follows that the net result of its appeal is, therefore, to complain of its own act.”
We have reached the conclusion that tax appeals to this court are not governed by section 21(b) of the Act of June 7, 1917, P. L. 363, because they are not appeals from any action of the Register of Wills, but from an appraisement made by an appraiser who is the agent of the Commonwealth. The right to such appeals is given and they are regulated by section 13 of the Act of June 20, 1919, P. L. 521.
The exceptions are all dismissed, the decree of the presiding judge is confirmed absolutely and the record is remitted to the register.