#### Matter of the Estate of Joseph Thorne, Deceased.

(Surrogate’s Court, Westchester County,

May, 1899.)

Transfer tax -— Gift in contemplation of death.

Where the testimony of a donee is evasive, but she admits that, a decedent, who left no personal property, gave her $100,000 in stock, and that she was to take care of him as long as he lived and supply him with money whenever he needed- it, the ■ transfer to her must be deemed to have been .made in contemplation of the. death of the-donor and as such is taxable under-subdivision 3 of section 220 of the Tax Law of 1896.

Appeal from a decree, entered upon the report of an appraiser, appointed under the Transfer Tax Act.

W. P. Prentice, for appellant Eunice E. Huff.

Joseph W. Middlebrook, for state comptroller and county treasurer, respondent.

*625Silkman, S.

This is an appeal from so much of the decree: entered upon the report of the appraiser herein, as fixes and assesses the tax upon personal property of the value of $100,000, alleged to have been transferred by'the testator prior to his death, and in contemplation thereof.

The authority upon which the appraiser has made the assessment is subdivision 3 of section 220 of the Tax Law, as follows: “ When the transfer is of property made by a resident, or by a nonresident, when such nonresident’s property is within the state, by deed, grant, bargain, sale or gift, made in Contemplation of the death of the grantor, vendor or donor, and intended to take effect in possession or enjoyment, at or after such death.”

The difficulty which the state is under, in proving the transfer of property and the liability to a tax, under the subdivision quoted, is apparent.

Many of the transactions which are taxable under such subdivision cannot be reached, by reason of the inability of the state to furnish proof of them,' and only through the integrity of the parties can the facts be ascertained.

Such transactions are frequently secret and known only to the decedent and to the person to be benefited, and there is no record of them outside of the possession of the parties thereto.

The. facts before us disclosé á transaction of the character suggested, and the state, in order to successfully maintain its right to tax, has been compelled to put the beneficiary or donee upon the stand, and rely upon her testimony to establish the transfer, which is alleged to be taxable.

The state claims that the evidence of Mrs. Huff sufficiently proves that she was only to enjoy the $100,000 worth of stock transferred to her, upon the death of Joseph Thorne.

The testimony of Mrs. Huff is Contradictory. The appraiser has adopted that version of her story which is most favorable to the 'state. In this, I think he has adopted the correct rule.

The witness is adverse. The result of her testimony means a difference of $5,000 to her; we must, therefore, assume that she would put that construction upon the transaction which will be most favorable to her, and most likely to relieve her of the tax.

Besides the testimony, the appraiser has had the witness personally before him, and the conduct of an adverse witness upon the witness stand frequently influences a court or jury in determining *626as to which of conflicting and contradictory statements is to be accepted.

It is unnecessary for.me to review the contradictions in the . testimony.

. The witness admita that the stock valued at $100,000, came as a gift from Mr. Thorne, and'that she was to take care of him as long as he lived, and was to supply him with money, whenever he needed it.

Taking this testimony in connection with the testator’s will, and the fact that he left no personal property, I think the appraiser was amply justified in assessing the tax under the subdivision of the Tax Law above referred to. He has adopted the only "reasonable inference to be drawn from the evasive testimony of Mrs. Huff.

Hpon the record, which is all that is’ before me, I am satisfied that the $100,000 worth of stock was not wholly beyond the control of the testator until his death.

The appraiser has had the greater advantage of having the witness before him personally.

The' result reached by the appraiser seems to be fully justified by the decision of the Court of Appeals in the Matter of Green, 158 N. Y. 223. .

Ho other ground of appeal has been urged or argued.

There, must be judgment affirming the decree entered upon the appraiser’s report, with costs.

. Decree affirmed, with costs.