Kunhardt v. Bugbee

• Decision Date: 23 July 1926
• Docket Number: No. 276.,276.
• Citation: 134 A. 118
• Parties: KUNHARDT v. BUGBEE, State Comptroller of the Treasury.
• Court: New Jersey Supreme Court

134 A. 118

KUNHARDT

v. BUGBEE, State Comptroller of the Treasury.

No. 276.

Supreme Court of New Jersey.

July 23, 1926.

On reargument. Former opinion affirmed. For former opinion, see 130 A. 660.

Reargued January term. 1926, before TRENCHARD and KATZENBACH, JJ.

Corra N. Williams, of Summit (Robert L Redfield. of New York City, of counsel), for prosecutor.

Edward L Katzenbach, of Trenton, for respondent.

PER CURIAM. This case was submitted at the May term, 1925, and was decided in an opinion filed October 20, 1925, and reported unofficially in 130 A. 660. Subsequently a petition for a reargument was filed. A re-argument was granted for the reason that the opinion incorrectly stated a date. This was the date upon which the decedent, Henry F. Kunhardt, had the first attack of angina pectoris, from which ailment he subsequently died. In the opinion filed, the date of the first attack was given as October 5, 1923. It should have been stated that the first attack occurred on October 19, 1923. This error placed the execution of the deed of trust after the first attack of angina pectoris. Both attacks of angina pectoris occurred after the execution of the deed of trust. The deed of trust was executed on October 16, 1923. The first attack of angina pectoris occurred on October 19, 1923. The second and fatal attack took place on October 22, 1923. The deed of trust was therefore executed three days before the first attack, and nine days before the death of Mr. Kunhardt.

The deduction made in the opinion, based on the execution of the deed subsequent to the first attack was unwarranted. The case was resubmitted at the January term, 1926. We have re-examined the case. The facts, with the exception of the date mentioned, are correctly stated in the former opinion, so they will not be restated. Our re-examination of the case has resulted in reaching the same conclusion we formerly reached, namely, that the tax imposed by the state should be affirmed.

In the former opinion attention was called to the amendment of the act taxing the transfer of estates made by chapter 174 of the Laws of 1922. This amendment provides that:

"Every transfer by deed, grant, bargain, sale or gift, made within two years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall, in the absence of proof to the contrary, be deemed to have been made in contemplation of death within the meaning of this section."

This provision places the burden of proving that the act of transfer made by Mr. Kunhardt. and comprising property in this state valued at $437,799.02 out of a total net estate of $450,673.66, nine days before his death, was not made by him in contemplation of death.

Have the prosecutors met the burden cast upon them by this provision of the statute. They contend they have. They first call the court's attention to that portion of the affidavit of Mrs. Kunhardt which states that the execution of the deed of trust, as well as the execution of a similar deed by Mrs. Kunhardt, had been determined upon two years prior to the actual execution of Mr. Kunhardt's deed, but a family dissension had caused the postponement of the execution of the deed. This may have been Mrs. Kunhardt's understanding of the delay. Mr. Kunhardt may, however, have had other reasons for the delay than the one he gave to Mrs. Kunhardt for postponing the execution of the deed. We do not think the presumption of the statute can be overcome by a statement from an interested party that an act had been determined upon two years prior to its actual execution.

It is secondly contended that the purpose of the deed of trust was the...