*2992 1. ESTATE TAX - GIFT - CONTEMPLATION OF DEATH. - On the facts, held, that a gift inter vivos by decedent to his daughter of certain securities was not made in contemplation of death and accordingly is not to be included in his gross estate under section 402 of the Revenue Act of 1921.
2. Id. PROMISSORY NOTES - VALUE. - On the facts, held, that two promissory notes for $10,000 and $20,000 included by respondent in decedent's gross estate at a value of $12,350 and claimed by petitioner to be worthless and uncollectible, are shown to have had a value at time of decedent's death and respondent's action sustained.
*312 Petitioner, as executor of the will of Charles F. Roe, deceased, appeals from a deficiency in estate taxes of $34,350.23 determined and advised of by respondent on December 2, 1925. The deficiency in question results from the inclusion by respondent in the gross estate of a gift of $245,057.50 in securities made by decedent to his daughter a short time prior*2993 to his death, and also the inclusion at a value of $12,350, of two promissory notes.
FINDINGS OF FACT.
Petitioner is the duly qualified executor of the will of Charles F. Roe, deceased, who died December 1, 1922, a resident of Highland Falls, Orange County, N.Y.
General Charles F. Roe was born in 1848, was a graduate of the United States Military Academy at West Point and served for 20 years as a cavalry officer, resigning in 1888, upon the death of his father, who left a large estate. The following year he became an officer in the New York National Guard, and was in 1898 commissioned Major General in command of the National Guard, occupying that office until 1912, when retired by operation of law as he had reached the age limit of 64 years. General Roe throughout his life and up to within a few months of his death, led a very active outdoor life and enjoyed exceptionally fine health and bodily vigor. He was a man of fine figure and unusual physical strength, devoted to outdoor sports, especially horseback riding.
For many years he had been a resident of Highland Falls, Orange County, N.Y., where he had a country place, and his winters were *313 spent at his town*2994 house on 37th Street, New York City. Prior to 1922 it was decedent's custom during the period spent at his summer home to occupy a considerable portion of each day in horseback riding and tennis playing and during the period each year spent at his town house it was his custom to take a very extended walk of several miles in the mornings and ride in the afternoons in the public parks or, in case of inclement weather, in one of the riding clubs.
Decedent had one child living, a daughter, Mrs. Slade, a widow with two children, and for these three he had a great affection. To his daughter he had for many years given a very generous allowance, continuing this after her marriage. He had also presented her with a town house in New York and a country home on Long Island, and to her husband he made a present of a seat on the New York Stock Exchange. Mr. Slade died in 1913, leaving little or no property, and decedent from that time on continued to support his daughter and her children. For some years prior to his death, the regular allowance given his daughter together with additional gifts of money ranged from $25,000 to $30,000 a year.
In the year 1918 decedent had an attack of*2995 pneumonia from which he fully recovered and resumed his normal outdoor activities.
On April 15, 1921, decedent's wife died and the winter following her death he occupied his town house alone, his daughter's home being across the street. On the afternoon of March 19, 1922, the decedent took his usual horseback ride, and attended a theater with his daughter in the evening and a few hours after his return home was attacked with pneumonia and was under constant attention of his physician and nurses for several weeks, but at the end of a month was sufficiently recovered to get out for short walks. This illness left his heart in a weakened condition but of this he was not advised by his physician or nurses. Shortly after the first of May, 1922, he suffered a new and distinct attack of pneumonia and while convalescing from this during the following month he suffered an attack of pulmonary oedema as a result of the extent to which his heart had been affected by the two attacks of pneumonia mentioned and following this, his physician for the first time advised him that it would be necessary for him to take things easy and not exercise as pneumonia always affected the heart to some extent. *2996 He was not advised that he had heart trouble or was in a serious condition, but the information as to the weakened condition of his heart was given in order to justify the restrictions which his doctor laid upon his resuming in the near future his former physical activities.
*314 Petitioner fretted and complained frequently at the restrictions placed upon him as to exercise and discussed his anticipated resumption of his horseback riding and other pleasures.
On July 27, 1922, decedent accompanied by his daughter and two nurses motored to East Hampton, Long Island, a distance of about 100 miles and remained there until September 5. During that time decedent daily walked to the beach, a quarter of a mile away, and spent the morning there, and walked back to lunch and in the afternoons he took long automobile rides.
As early as 1916 decedent had discussed with his attorney and with a close friend and business adviser, the question of transferring to his daughter, Mrs. Slade, sufficient securities to give her an independent income equivalent to the allowances he had made for her support and stated his intention to do so. On several occasions between that time and the*2997 date of his illness in March, 1922, he had expressed his intention to make this gift to her, stating that he would do it "as soon as he got around to it." During decedent's severe illness beginning in March, 1922, his daughter had been much embarrased by lack of funds, due to his inability to attend to his affairs and she had been forced to apply to his brokers and to a friend to arrange loans for her to take care of her own living expenses and the expenses of his household and illness. During decedent's stay at East Hampton his daughter advised him of this and discussed with him his expressed intention to transfer to her some property so as to give her an independent income, and he advised her that he had always intended to do so and would on the next occasion that he went to his bank box.
During petitioner's stay at East Hampton, he was constantly complaining as to the restrictions placed upon him in the matter of exercise and exertion and planning for the resumption of his normal pleasures and return to his horseback riding and other outdoor activities and was especially anxious to get to his summer home at Highland Falls. During this stay at East Hampton decedent had two trained*2998 nurses in attendance, the night nurse being employed for the reason that decedent was suffering with insomnia and was restless, although it was not considered that his safety demanded this attention. On September 5, 1922, decedent with his daughter and the two nurses motored from East Hampton to New York on their way to Highland Falls, reaching New York in the late afternoon and decedent walked with one of his nurses from his town house on 37th Street to the Belmont Hotel, a distance of about 5 blocks, to dinner. On the following morning decedent asked his daughter, Mrs. Slade, to accompany him and walked from his house to the Lincoln Trust Co. on 47th Street, a distance of 10 blocks, and leaving *315 her upstairs, went down himself to his bank box and selected and took with him certain securities involved in this proceeding, and walked back with her to his house, and from there called his brokers and arranged for the transfer of these to Mrs. Slade. Shortly thereafter a messenger arrived from the broker's office to whom the securities were delivered by decedent. The transfer was effected several days later and the securities were delivered to Mrs. Slade by the brokers later*2999 in that month. These securities had value on December 1, 1922, of $245,057.50.
On the afternoon of September 6, 1922, decedent drove from New York to Highland Falls, and on reaching there walked about the place and discussed matters with his superintendent without appearance of fatigue and took dinner that night with the family. Following this for some days he arose in the morning at his usual time and breakfasted with the family and spent his mornings on the lawn or walking about the place and his afternoons in long automobile drives. During this time he wrote to his sister-in-law in Montana, asking her to come east and spend the winter with him.
He was examined in October by his physician and his condition found not to be good, and it was thought best to put him to bed. This action discouraged him very greatly and he was much distressed. From this time on he did not leave his bed and on December 1, 1922, died of myocarditis, due to the effect upon the heart of the two attacks of pneumonia the preceding spring.
Decedent left a will executed by him in 1910, whereby his entire estate was left in trust, two-thirds of the income therefrom to be paid his daughter, Mrs. Slade, *3000 during her lifetime and the remaining one-third to be paid his wife for life, and after her death, to Mrs. Slade.
Upon decedent's death there were found among his papers two Promissory notes signed by Louis F. Goodsell, one for $10,000, the due date on its face being September 25, 1911, and the other for $20,000, the due date on its face being September 20, 1911. There were also found certificates in the name of Louis F. Goodsell, for 494 shares of the capital stock of the Citizens Water Works Co., of Highlands, N.Y., of the par value of $25 per share with a writing to the effect that they were pledged to the decedent as collateral for the said note of $20,000.
Louis F. Goodsell, the maker of the notes in question, died prior to December 1, 1922, and on that date his estate was being administered and was insolvent. On that date the stock of the Citizens Water Works Co. of Highlands, N.Y., had an undetermined market value, and an intrinsic value equal to its par value. Petitioner, as executor, reported property owned by decedent at the time of his *316 death of a gross value of $2,402,587.49. This amount did not include the value of the securities transferred by petitioner*3001 to his daughter on September 6, 1922, or any value as representing the two promissory notes for $10,000 and $20,000, respectively.
OPINION.
TRUSSELL: Section 402(c) of the Revenue Act of 1921 provides that there shall be included in the gross estate of a decedent at the time of his death:
* * * Any interest therein of which the decedent has at any time made a transfer, or with respect to which he has any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money's worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.
This provision, which is the same in the Revenue Acts of 1918 and 1924, has been before the Board and the courts in many cases and the construction uniformly applied*3002 is that by the term "contemplation of death" is meant an apprehension of death within the reasonably near future from some existing bodily or mental condition, and not the general expectation of ultimate death entertained by everyone, and that such contemplation of death must be the motive which prompted the transfer and without which the transfer would not have been made, in order to include the transferred property is the estate of the decedent subject to tax. ; ; ; ; ; ; ; ; ; .
In the case before us the decedent, three months before his death, transferred to his daughter certain property. It is not questioned that the transfer*3003 was a gift, intended to take effect in praesenti and the sole question presented is whether or not the proof adduced is sufficient to show affirmatively that decedent's action was induced by some motive other than contemplation of death as above defined, such affirmative showing being necessary to rebut the presumption created by the section of the statute quoted.
It is a difficult thing at best to determine definitely the motive actuating a person now dead, in the performance of some act. The *317 lips of the one witness who could speak with actual knowledge are silent, and we must seek our conclusion from evidence of the facts in connection with and leading up to the transfer, and the physical condition and state of mind of decedent at the time.
In the present case the decedent is shown to have been a man of fine intelligence, possessed of a large estate, and who had up to within a few months of his death enjoyed exceptionally fine health and bodily vigor. For his widowed daughter and her two children he had a deep affection. He had always given his daughter a very generous allowance, which was continued after her marriage, and following her husband's death he*3004 had been the sole support of herself and children, giving her for that purpose from $25,000 to $30,000 a year. He had made his will be which she would succeed to the total income from his estate upon his death. He had one several occasions in the past discussed with his attorney and with a close friend and business adviser, the matter of transferring to his daughter securities sufficient to give her an independent income and had expressed his intention to do so, and had so advised his daughter. The record shows that during his illness in the spring of 1922 his daughter had been embarrassed by lack of funds, due to his temporary inability to attend to his affairs, and that during his convalescence he was advised of this, and stated that he had long intended to make a transfer to her of some securities and would do so upon his next visit to his bank box. Shortly thereafter upon his return to New York he walked with his daughter to his bank and personally selected certain securities and had them transferred to her.
This testimony shows a definite motive for the transfer other than contemplation of death - a determination arrived at long prior to his illness. *3005 On the other hand, the record indicates that at this time, decedent was ignorant of his serious physical condition and was not anticipating his death in the near future, as evidenced by his constant discussions of his plans for the resuming of his normal outdoor activities, and the transfer itself suggests that he did not anticipate that death was imminent as the reason for it, in so far as provision for his daughter was concerned, would not have existed in that case, as his death would have placed abundant funds at her disposal. The only reason which a contemplation of death would have suggested for his action would be to permit his estate to escape the payment of tax on the transferred property and the evidence in our opinion does not support such a conclusion. The property transferred was less than 10 per cent of decedent's estate and he had during the past years paid a high surtax rate on income although he had expressed his intention of making this transfer to his daughter and *318 the saving in his taxes in such case was fully realized by him. The facts in this case justify such a conclusion even less than those in *3006 , in which the court said:
The idea of defrauding the Government out of a comparatively small amount of the inheritance tax, when presumably he knew that his estate would be required to pay a very large sum, to-wit: $249,475.51, to my mind is incomceivable, and any presumption arising under the statute that the gift was made in contemplation of death is, I think, fairly overcome by the existing facts and circumstances.
We hold that the transfer of the securities by decedent to his daughter on September 6, 1922, was not made in contemplation of death and accordingly the property transferred should not be included in decedent's gross estate.
The second issue is upon the value of two promissory notes which were included by respondent in decedent's gross estate at a valuation of $12,320. Petitioner contends that these notes were wholly worthless and uncollectible at the time of decedent's death. The burden is upon him to establish this. The notes are not in evidence, petitioner's attorney testifying that they were "probably destroyed." It is testified, however, that they were due September 20 and 25, 1911, respectively, and*3007 petitioner insists that this proof is sufficient to show that they were barred of collection by the statute of limitations of New York State (New York Civil Practice Act, sec. 48) and that the right to satisfy the indebtedness evidenced by the note for $20,000 was limited at best to the enforcement of the lien against the collateral, as the conditions of the pledge gave no right to sell, and that not only was this collateral without market value, but a suit to foreclose the lien was barred by the 10-year limitation of the statute (New York Civil Practice Act, sec. 53). It is also insisted that even though the notes were not barred by the statute of limitations they had no value, as the maker, State Senator Louis F. Goodsell, had died prior to the death of General Roe, and his estate was insolvent.
We can not conclude from the fact that the due date on the face of the notes was more than six years prior to the death of decedent that these notes were barred at that time from collection. There may have been payments of interest subsequent to maturity or other conditions which extended the time. The burden is upon petitioner and he has merely proved a due date on each note which*3008 may or may not be the one from which the statute runs. Nor is the mere fact of insolvency of the estate of the maker proof that the notes were wholly worthless. The record does not show what were the assets and liabilities of the Goodsell estate. It is merely testified that it was insolvent, which may mean that it had no assets or that it could pay a large percentage upon its indebtedness.
*319 However, aside from the questions of the bar of the statute of limitations and the ability of the Goodsell estate to pay any amount, it is shown that the note for $20,000 was secured by a pledge of collateral consisting of 494 shares of stock of the Citizens Water Works Co. of Highlands, N.Y., of the par value of $25 per share. Petitioner insists that the right of the pledgee to enforce his lien was doubtful, when suit upon the debt was barred by the limitations of section 48 of the New York Civil Practice Act and that, in any event, the lienor could not sell the property to satisfy the debt, as no specific right of sale was given in the pledge, but was limited to a suit to enforce the lien and that such suit was barred by the 10-year statute referred to.
*3009 With this we can not agree. The rule appears to be well settled in New York that the lien of a pledgee holding possession of the property is not subject to the statutory limitations and may be enforced even though suit upon the debt is barred, and that the lienor may, by complying with the provisions of sections 200-210 of the lien law, sell the pledged property to satisfy the lien without bringing suit to foreclose. .
The record shows moreover, that the stock of the Citizens Water Works Co. had a very substantial value at the time of decedent's death. The property was in good condition and operating and a surplus had accumulated. Its value was in excess of its liabilities including stock. It had not paid dividends on its stock, its earnings having been paid out as salaries to its two stockholders. The testimony in respect to this company by its president, who with Senator Goodsell owned all of the stock, shows that he considered the stock as having a very substantial value. The fact that stock with a very substantial intrinsic value had never been placed on the market because it was closely held by*3010 two men, and consequently had no determined market value, does not mean that it was wholly without market value or without actual value as collateral upon a note, as petitioner insists. The record is silent as to what disposition was actually made of this stock by petitioner, but we can assume from petitioner's general denial of market value that the was no enforcement of his lien by sale and from the statement that the notes were probably destroyed we presume that some settlement was effected which must have been either by petitioner retaining the stock, or by releasing it to the Goodsell estate. If the first was done, a value in the note is thereby demonstrate and if the latter, then a voluntary release was made of something with a substantial asset value upon which petitioner held an enforceable lien. The action of respondent with respect to this item is approved.
Judgment will be entered pursuant to Rule 50.