
    The People ex rel. Emma Chase v. Edward P. Barker et al., Cominissioners of Taxes.
    (Supreme Court, New York Special Term,
    December, 1896.)
    Taxes — Assessment oí personal property — Attempted transfer to ., i avoid. ’
    An assessment upon personal property tor the purpose of taxation, cannot be avoided by the'execution-of a trust deed purporting-to transfer the securities'for the benefit.of the grántor, where a power of instantaneous revocation is reserved and there is no transfer of possession- of. such securities. - ’
    Cebtiobabi to: réview assessment'of personal property..
    'Cardoza &. Hathan (Lucien B. Chase, of counsel), for relator.
    Francis M. Scott (George S. Coleman, of counsel), for commissioners.
   Russell, J.

The relator seeks to avoid an assessment of $75,000 on personalty, owned.by her, made by the commissioners in the assessment for-the year-1896.. She was the owner of-sufficient'personalty to justify such an -assessment, but shortly . prior to the. assessment day, executed a deed of trust purporting to transfer, the securities to a person acting in a confidential capacity toward her, without a transfer of- the possession of the personalty,, and with the. power of instantaneous revocation. ■ Her counsel cites the well-known cases which hold that the intent to evade taxation does not overcome the absolute legal transfer -of property, the lawful creation of á debt which may he deducted from the personalty in estimating the value of that to be assessed, or the actual purchase, of nontaxable securities, so as to justify the courts in disregarding the change in the condition of the assessed person, because of the' evasive intent which prompted such change! • It has not,, however,, yet been held that the;intent.may not-be material in determining the effect of the steps taken to consummate such a change. In this ■ case, no other motive being apparent for the -creation of the trust-, under the circumstances, it is plain that the relator adopted .this means to equalize for herself what her counsel claims to be the unequal burden of assessment in Hew York city upon personalty, instead of applying to the proper official authority to make such equalization. And the principle to he decided must be determined by this court with the same rules to guide it as though the relator were assessed for her exact proportion of the personalty properly" assessable within the municipality of ¡New York.

The statute under which assessments are made reads as follows: Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession, or under his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of these trusts be assessed against any other person.” 2 R. S. 989, art. 1, § 5.

The personalty in question was not in the possession nor under the control of -the trustee, and so could not be assessed against him. The beneficiary never delivered it to him nor was there any means by which he could force the possession of it into his own hands. If a demand were made by him the beneficiary could readily reply that she refused to surrender, and such reply would be justified under her power of revocation. He does not hold any title to ‘protect the rights of any third person, and the person assessed has not only the original title but the custody, free from all claim of even the trustee, and even the power of absolute disposition, for a sale by her to a third person would carry a complete title, uniting, as'it would, the whole beneficiary interest, the manual possession and the power of revocation of any precedent nominal title in the trustee. Such a valuable, property right, freed from the complication of title in any other person, except one created for the sole purpose of avoiding taxation, and limited and circumscribed by the want of power or title in the trustee as against the beneficiary, would justify a recovery against any person who destroyed that property for the full value thereof, and does justify the assessors in determining that the relator was the owner of personal property at the time of the value of $75,000. The necessity of paying .taxes upon personal property would become wholly voluntary with the owners' in this state if they could be avoided by the execution of such an instrument as that here relied upon by the relator.

The proceeding is dismissed, with costs against the relator.

Proceedings dismissed, with costs.  