
    In the Matter of the Appraisal of the Estate of Sarah Forrest Zabriskie, Deceased. George Gray Zabriskie and Another, as Executors, etc., Appellants; State Tax Commission, Respondent.
   Order of the Surrogate’s Court modifying the taxing order of July 3, 1934, modified so as to exclude from the gross estate property transferred by the decedent during her lifetime, and also so as to allow, as a deduction from the gross estate, the aggregate amount of property previously taxed, at the value at the decedent’s death or the value in the prior estate, whichever was the lower, and, as so modified, affirmed, in so far as appealed from, without costs, and matter remitted to surrogate to fix the tax in accordance herewith. We are of opinion that the showing here as to the prior gifts made to the children, the desire of the decedent to rid herself of the burdens of the property transferred, her lack of knowledge of the seriousness of her affliction and her belief that she was in sound health rebutted the presumption created by reason of the fact that the gifts were made within two years prior to death and fairly established that her motive in making the gifts was not to avoid the payment of tax nor that she did so in contemplation of death, in the statutory sense. (Matter of Spaulding, 49 App. Div. 541; affd., 163 N. Y. 607; Matter of Baker, 83 App. Div. 530; affd., 178 N. Y. 575; Matter of Beyer, 190 App. Div. 802; Matter of Baird, 219 id. 418.) We are further of opinion that the Tax Commission’s notice of appeal from the taxing order was not timely and that the Tax Law does not require service of a copy of the order with notice of entry upon the attorney for the Tax Commission. (Tax Law, § § 249-w and 249-x; Matter of Seymour, 144 App. Div. 151; Matter of Connelly, 38 Misc. 466.) Order of January 21, 1935, denying appellants’ motion to dismiss the appeal of the State Tax Commission from the taxing order of July 3, 1934, reversed on the law and the facts, without costs, and motion granted, without costs. Hagarty, Scudder, Tompkins and Johnston, JJ., concur; Lazansky, P. J., dissents.  