
    Second Department,
    January, 1914.
    In the Matter of the Appraisal under the Acts in Relation to the Taxable Transfers of Property of the Estate of William Vincent Dee, Deceased. Mary A. Abbot, as Administratrix, etc., Appellant; Comptroller of the State of New York, Respondent.
    
      Tax — transfer tax—gift causa mortis.
    
    Appeal by Mary A. Abbot, as administratrix, etc., of William Vincent Dee, deceased, from an order of the Surrogate’s Court of Kings county, entered in said court on the 10th day of December, 1913.
    Order of the Surrogate’s Court of Kings county affirmed, without costs. No opinion. Jenks, P. J., Thomas, Rich and Stapleton, JJ., concurred; Burr, J., read for reversal.
   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; affd. on opinion below, 178 N. Y. 575.) He was found dead about two o’clock in the morning of March 18, 1913, upon the stairs leading to his room. The cause of his death nowhere appears. The gift was about noon on March seventeenth. 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 then homes.- His appearance was that of one in good health. It is true that about midnight of March seventeenth he was seen “testing his chest” with some instrument. This was nearly twelve 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 same witness, that he was not ill, and that he was “ all right.”  