§ 112. Intention of Donor or Grantor.-It is not necessary, in order that a transfer in contemplation of death be liable to the inheritance tax, that it should be made with fraudulent intent to evade taxation; it is enough that the gift is made in contemplation of death. But the fact that a conveyance is made with the intention of evading the tax does not defeat the tax nor invalidate the transfer, as the fund or property is liable to taxation in the possession of the grantee or donee. The intention to evade may be apparent in the instrument of transfer, or it may be found when all the circumstances attending the transaction are disclosed."

The intention to retain the enjoyment of property conveyed by a deed to take effect after the death of the grantor need not be expressed in writing. If real property is conveyed with a parol agreement or understanding that the grantor shall retain the right of possession and enjoyment of the whole or some part thereof during his life, it is, after his death, subject to the inheritance tax to the extent of the part so retained."

§ 113. Consideration for Transfer, in General.While the statutes of the various states, as well as the congressional act of 1898, taxing transfers made in contemplation of death or to take effect thereupon, ordinarily refer to the transfer as by "deed, grant, sale or gift," it seems to be conceded that only such transfers are contemplated as are voluntary or gifts proper, and that transfers for a valuable consideration are not subject to the tax imposed.10 Said the

7 Rosenthal v. People, 211 Ill. 306, 71 N. E. 1121.

8 State Street Trust Co. v. Stevens, 209 Mass. 373, 95 N. E. 851. People v. Moir, 207 Ill. 180, 99 Am. St. Rep. 205, 69 N. E. 905.

10 Estate of Hess, 110 App. Div. 476, 96 N. Y. Supp. 990, affirmed, 187 N. Y. 554, 80 N. E. 1111.

court in Hagerty v. State," "The meaning of the word 'sale,' as used in the statute, is to be determined by the maxim 'noscitur a sociis,' and it includes only transmissions which, though in form sales, are in fact gifts"; and in Estate of Birdsall: 12 "It is very evident that the word 'deed,' as used in this act, has no reference to a conveyance of property by such an instrument made in the ordinary course of business for a valuable consideration, but is confined to conveyances of real property intended as gifts"; and in Estate of Miller: 13 "I do not consider that the statute has reference to transfers made upon a valuable consideration, but that it relates merely to voluntary transfers without consideration, for the tax is not one upon property, but upon the right of succession. A payment of an obligation dependent upon a valuable consideration is not a succession in any sense"; and in Blair v. Herold: "I feel justified, therefore, in holding that the words 'deed, grant, bargain, sale or gift,' as used, referred, each and all of them, to transfers without consideration, and operative by way of gift."

§ 114. Consideration of Support of Grantor or Others. This question has arisen where property has been conveyed in consideration of the support of the grantor by the grantees during his life. In such cases, if a present title is conveyed, if the property passes in possession and enjoyment as of the date of the conveyance, no intention to evade the tax appearing, the transfer is not taxable as having been made in contemplation of death or to take effect at or after

11 Hagerty v. State, 55 Ohio St. 613, 45 N. E. 1046.

12 Estate of Birdsall, 22 Misc. Rep. 180, 49 N. Y. Supp. 450.

18 Estate of Miller, 77 App. Div. 473, 78 N. Y. Supp. 930.

14 Blair v. Herold, 150 Fed. 199.

15

death; " and this although the deed is withheld from record until the grantor's death.1

Where a man conveys property to third persons in consideration of their agreement to care for his deaf and dumb daughter during her life, he being well advanced in years and supposing that she will survive him, which in fact she does not, the property cannot, on his death, be subjected to the inheritance tax, for the impelling motive for the transfer is not the contemplation of death, but the desire to provide for the daughter's future, and besides the conveyance is based upon a valuable consideration."

§ 115. Consideration of Services. Under the Massachusetts statute, where the transfer is "a bona fide purchase for full consideration in money or money's worth," a tax cannot be levied. But the consideration, whether it be money or the equivalent of money, must be full, else the transfer is not exempt. If services rendered, or to be rendered, constitute the consideration, their value may be inquired into and ascertained, and where, in "money's worth," they equal or exceed the fair value of the property at the death of the transferrer, no tax can be levied; but if they fall below that value, there is no provision for

15 Lamb's Estate v. Morrow, 140 Iowa, 89, 18 L. R. A., N. S., 226, 117 N. W. 1118; Estate of Hess, 110 App. Div. 476, 96 N. Y. Supp. 990, affirmed, 187 N. Y. 554, 80 N. E. 1111; In re Hulse, 15 N. Y. Supp. 770; In re Thorne, 44 App. Div. 8, 60 N. Y. Supp. 419, appeal dismissed, 162 N. Y. 238, 56 N. E. 625.

Where the principal part of an estate was conveyed to the grantor's cousin, on the latter's promise to give the grantor certain care and execute to her, free of rent, a life lease of the property, and the lease was executed on the same day of the conveyance, the transaction had the appearance of an attempted evasion of the transfer tax law, and the transfer was held taxable: Estate of Dobson, 132 N. Y. Supp. 472. 16 Estate of McCormick, 15 Pa. Co. Ct. 621.

17 People v. Burkhalter, 247 Ill. 600, 139 Am. St. Rep. 351, 93 N. E.

a reduction, leaving the excess only to be taxed as a gratuity.18

§ 116. Situs of Property-Nonresidence.-Where the beneficiaries of a transfer of property within the state by a resident, by a gift intended to take effect in possession or enjoyment at or after his death, take the property in possession or enjoyment under the laws of the state, and under an instrument there made, it is not important, so far as concerns the application of the inheritance tax statute, whether they reside in the state or elsewhere at the time of the imposition of the tax. And a transfer by a resident of the state of stocks, bonds and securities in trust is subject to the inheritance tax, as made to take effect at or after the death of the transferrer, notwithstanding the possession and legal title of the property at the time of his death are in nonresident trustees without the state.20

19

§ 117. Transfers in Contemplation of Death, in General. The meaning of the words "in contemplation of death," as here used, must be inferred and ascertained from the context of the statute and the object or purpose of the law. Looking in that direction for their proper interpretation, it becomes obvious that they are intended to cover transfers of persons who are prompted to act by reason of the expectation of death and who thereby accomplish transmissions of property in the nature of testamentary dispositions. The words do not refer to that general expectation commonly entertained by all persons, but rather to that apprehension which arises from some existing condi18 State Street Trust Co. v. Stevens, 209 Mass. 373, 95 N. E. 851. 19 Estate of Green, 153 N. Y. 223, 47 N. E. 292.

20 Estate of Keeney, 194 N. Y. 281, 87 N. E. 428, affirmed, Keeney v. New York, 222 U. S. 525, 56 L. Ed. 32 Sup. Ct. Rep. 105; In re

Douglas County, 84 Neb. 506, 121 N. W. 593; Estate of Bullen, 143 Wis. 512, 139 Am. St. Rep. 1114, 128 N. W. 109.

tion of body or some impending peril. They refer to an expectation of death which arises from such a bodily or mental condition as prompts persons to dispose of their property and bestow it on those whom they regard as entitled to their bounty. This accords with the general purposes of the law, namely, the imposition of a tax on the devolution of property involved in the demise of the owner.21 "A gift is made in contemplation of an event when it is made in expectation of that event, and having it in view; and a gift made when the donor is looking forward to his death as impending, and in view of that event, is within the language of the statute." 22

The contemplation of death must be the impelling motive, without which the conveyance would not be made, in order to subject the transfer of property to the inheritance tax. An owner may give away or otherwise dispose of his property, or any part of it, in any manner he sees fit; and if such disposition takes effect, in possession and enjoyment, during his lifetime, it will not be taxable unless made in contemplation of his death. But if the actual intention of the parties to a deed is, that possession or enjoyment of the property shall be postponed until after the death of the grantor, the transfer will be subject to the inheritance tax, though such intention is not evidenced in writing. So will an absolute gift, although followed by possession and enjoyment of the property in the grantor's lifetime, if the gift was made by him in contemplation of his death, and this regardless of any intent to evade the payment of the tax.23

21 Estate of Baker, 83 App. Div. 530, 82 N. Y. Supp. 390, affirmed, 178 N. Y. 575, 70 N. E. 1049; State v. Pabst, 139 Wis. 569, 121 N. W. 351.

22 Estate of Benton, 234 Ill. 366, 14 Ann. Cas. 107, 18 L. R. A., N. S., 458, 84 N. E. 1026.

23 People v. Burkhalter, 247 Ill. 600, 139 Am. St. Rep. 351, 93 N. E. 379; Bailey v. Henry (Tenn.), 143 S. W. 1124, discussing the rule of