I concur in the result. I do not think, however, that it is necessary to hold that the transfer in question was made “in contemplation of * * * death” within the meaning of the Tax Law. But it is quite clear to me that under the instrument of January 10,1905, Rufus King Palmer, the son of the decedent, took no title to the property therein mentioned. The transaction in form was sufficient to constitute a gift inter vivos. But the law penetrates beneath the surface of a transaction and considers not its form but its purpose. That purpose is correctly indicated by Rufus himself in the following language in his affidavit taken before the appraiser and used as evidence in this proceeding, viz.: “ To relieve himself of the burden of his estate in view,of his illness and through fear that his illness might be a lingering one, attended by weakened mental capacity which might incapacitate him to look after his own and his family’s welfare, all of which was so expressed to deponent by said decedent, said decedent desired to and did transfer to deponent all of his personal property absolutely on or about the 10th day of January, 1905.” The evidence clearly shows that Rufus was to be the custodian or manager of the property and that the transfer to him although absolute in form was merely for the accomplishment of such purpose. He was already acting under a power of attorney. It taxes human credulity to the utmost to suppose that General Palmer intended to make a gift of this large proportion of his property to one son to the exclusion of his widow and his other *370children.' Such an inference- is inconsistent with the' provisions of his will ratified by a codicil made only four months prior to the instrument of January, 1905, in which no" such purpose is disclosed. It is also inconsistent with every act of Rufus after the transfer both before and after his father’s death, which acts are confirmatory of the provisions of the will in respect to the disposition of the estate. Rufus would find it extremely difficult under the evidence before us to maintain his title to the property against the testamentary provisions of his father. - It is unnecessary to give rein to the imagination to reach the conclusion that a gift was not- intended. It requires an extremely lively imagination to reach the contrary conclusion. The deceased did not intend to exclude his family from" participation in his estate and make them dependent on the. bounty or liberality of one member thereof. Having due-regard to the form of the transaction nevertheless the actual purpose thereof, as clearly indicated by the evidence, was to relieve the owner of the property from the care and management thereof without divesting himself of the title thereto. Such property, therefore, passed under the. will of the deceased and is subject to the tax.
Kellogg, J., concurred. •
Order or decree of surrogate reversed on law and facts, and matter remitted to the surrogate for further disposition, without costs.