
    Matter of Assessing and Determining the Transfer Tax of the Estate of John P. Sharer, Deceased.
    (Surrogate’s Court, Herkimer County,
    December, 1901.)
    Transfer tax — Deeds and securities placed in a box by a testator but not delivered by him to the proposed transferees.
    Where a testator, after placing unrecorded deeds, executed by him, and securities, assigned by him, in envelopes inscribed as the “ property ” of the proposed transferees, and after placing the envelopes in a box, in a bank, labeled with his name and that of a transferee, continues to control the real estate and receive the income of the securities, the property is subject to the transfer tax.
    Appeal from the report of the appraiser under the Transfer Tax Act, and the order entered thereon.
    Dr. John P. Sharer of Little Falls died in that city on the 8th day of January, 18"99, leaving a last will and testament by which after devising certain real estate situated in Illinois to a sister he disposed of his entire estate to Margaret Caldwell, the sister of his deceased wife, which will was made in 1894. Dr. Sharer had a metallic box at the Hational Herkimer County Bank on the outside of which was a paper pasted with his name on and also the name' of Margaret Caldwell. After the doctor’s death there was found in this box an unrecorded deed purporting to convey to Margaret Caldwell and to Julia Caldwell, another sister-in-law, two lots on John street in Little Falls worth about $6,000 and also an unrecorded deed purporting to convey to the said Julia Caldwell certain lots on Church street in said city and an undivided one-half of a house and lot on Albany street worth about $5,500, also an executed assignment of twenty-five shares of the capital stock of the National Herkimer County Bank and one hundred shares of Missouri Pacific Railroad stock and a small mortgage, to Julia Caldwell and two certificates of deposit amounting to $1,300 with indorsements on the back thereof to pay to the order of Julia Caldwell.
    The several instruments were in envelopes on which the doctor had written “ the property of ” the proposed transferee (naming her). The deeds were executed before a notary who also signed as a witness to execution.
    On the appraisal the executors claimed that the title and ownership of all the property mentioned passed by the instruments described to Margaret and Julia Caldwell. The State through the county treasurer maintained that the alleged transfers were incomplete and ineffectual and invalid because not delivered and if valid they were not intended to and did not take effect in possession and enjoyment until at or after the death of Dr. Sharer and were taxable. The appraiser finally reported all of said property taxable and an order was entered confirming said report and assessing the tax.
    From that order this appeal was taken by the executor.
    C. J. Palmer, for appellants.
    George H. Bunce, for County Treasurer, respondent.
   Devendorf, S.

This is an appeal by the executors of the last will and testament of John P. Sharer, .deceased, from the report of the transfer tax appraiser fixing, assessing and determining the transfer tax upon the property of the above named deceased.

I think the evidence taken under objection, of declaration made by the deceased, was not competent, and in arriving at a decision herein, such evidence may be deemed eliminated from the record, and is disregarded accordingly.

I have considered the case carefully and am convinced that the deceased nev^r intended to and in law did not part absolutely with his bapk stock, railroad stock, certificates of deposit, the Keller and Daily mortgages and the real estate mentioned.

It is true that he signed certain papers which if delivered in good faith and followed by a change of possession and acts of ownership on the part of the transferee would be good and effectual to carry absolute and title away from him; but to all the world after the date of the alleged delivery he continued to be and remain the owner of the property as before; the property was not within the reach of either Margaret or Julia Caldwell when it went to Sharer’s, privaté box at the bank; he received the income from it and so far as can be determined treated it as his own; he still exercised dominion over it and did not permit the transfer to take effect so far as the use or control of the property was concerned during his life.

Whatever may be alleged as to the legality of the execution of the papers and the alleged subsequent delivery thereof, yet the property was so managed and such management acquiesced in by the parties that the transfer if any took effect after Sharer’s death.

I do not think it can be said that Julia or Margaret Caldwell was a purchaser for value of this property; there are too many circumstances and facts pointing in an opposite direction.

If a gift were claimed then it can be surely asserted that the supposed donor retained the property under his control and it was within his power to such an extent as to invalidate the gift theory; if a grant or transfer, then the property was retained and controlled by the grantor during his life and never actually took potential effect until after his death.

I see no reason to disturb the report as returned by the appraiser, therefore, I have affirmed the same and a decree may be entered accordingly; but the 10 per cent interest on the tax should not be allowed during the time that the proceeding has been in litigation.

Decree affirmed.  