
    In re DEE’S ESTATE.
    (Supreme Court, Appellate Division, Second Department.
    January 23, 1914.)
    Appeal from Surrogate’s Court, Kings County. Judicial' settlement of the estate of William Vincent Dee, deceased. Application for appraisal of taxable transfers of property belonging to the estate. From a surrogate’s order fixing the assessment, - Mary A. - Abbot, as administratrix, appeals. Affirmed, without opinion. William F. Bleakley, of Yonkers, for appellant. William J. Mahon, of New York City, for respondent State Comptroller.
   PER CURIAM.

Affirmed.

BURR, J. (dissenting).

I can discover no evidence in this case that at the time of the gift by Dr. Dee to Mrs. O’Neil, which concededly is a gift “inter vivos,” he was then under the apprehension of death which arose from some existing condition of body or some impending peril. Matter of Baker, 83 App. Div. 530, 82 N. Y. Supp. 390, affirmed on opinion below 178 N. Y. 575, 70 N. E. 1094. He was found dead about 2 o’clock in the morning of March 18, 1912, upon the stairs leading to his room. The cause of his death nowhere appears. The gift was about noon on March 17th. That forenoon, in answer to inquiries about his health, he replied, “I feel fine.” He had attended to his professional practice during the entire day, receiving patients in his office, and visiting others in their homes. His appearance was that of one in good health. It is true that about midnight of March 17th he was seen “testing his chest” with some instrument. This was nearly 12 hours after the completed gift. If any inference could be drawn from this incident, it was immediately destroyed by testimony from the same.witness that the examination disclosed no disease. On the contrary, he then stated, in answer to a question addressed to him by the saffie witness, that he was not ill, and that he was “all right.”  