Kunhardt v. Bugbee

• Citation: 130 A. 660
• Decision Date: 20 October 1925
• Docket Number: No. 221.,221.
• Parties: KUNHARDT v. BUGBEE, Comptroller.
• Court: New Jersey Supreme Court

130 A. 660

KUNHARDT

v. BUGBEE, Comptroller.

No. 221.

Supreme Court of New Jersey.

Oct. 20, 1925.

Certiorari by Mabel F. Kunhardt, as executor of the last will and testament of Henry R. Kunhardt, deceased, to review the assessment of a tax on the estate of deceased, made by Newton A. K. Bugbee, Comptroller of the Treasury of the State of New Jersey. Assessment affirmed.

Argued May Term, 1925, before TRENCHARD, KATZENBACH, and LLOYD, JJ.

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

Edward L. Katzenbach, of Trenton, for defendant.

PER CURIAM. The writ of certiorari in this case brings up for review a determination made by the comptroller of the treasury of the state of New Jersey in the matter of the inheritance tax upon the estate of Henry R. Kunhardt. Mr. Kunhardt died on October 25, 1923. He was domiciled in the state of New York at the time of his death. His will was admitted to probate in New York county. On October 16, 1923, nine days before his death, he executed a deed of trust to the Guaranty Trust Company of New York transferring to them 400 shares of the capital stock of the Carpenter Steel Company, a New Jersey corporation. The deed of trust created a life estate in favor of his wife. Upon her death, the shares of stock were to be equally divided into three parts and further life estates in favor of each of his three sons were created with power of appointment as to principal by their wills. The shares of stock in the Carpenter Steel Company constituted the bulk of Mr. Kunhardt's estate. The comptroller appraised the value of the New Jersey property at $437,799.02. The trust value of the entire estate was $469,836.72. Deductions of $19,163.06 were allowed, which made the net estate $450,073.66, of which $437,799.02 constituted the value of the capital stock of the Carpenter Steel Company. The tax was $4,796.06. This was paid under protest.

In the present proceeding, the prosecutor seeks to have it held that the deed of trust mentioned was not made in contemplation of death. It has been stated that the deed of trust was made nine days before Mr. Kunhardt died. The act taxing the transfer of estates was amended by chapter 174 of the Laws of 1922. By this amendment, every transfer made within two years prior to the death of the grantor, 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 provision of the statute. The prosecutor contends that the burden is upon the state to show that the deed of transfer was made in contemplation of death. This is not so. It is presumed to have been made in contemplation of death when made within two years of the period of death. The burden is upon the prosecutor to show that the transfer was not made in contemplation of death.

The facts set forth in the record show that Mr. Kunhardt was in his sixty-third year when he died. He had retired from business about the year 1918. He bad spent considerable time in traveling, and was planning to continue his travels. Two or three years prior to his death, his physician, Dr. Hutton, said that Mr. Kunhardt was suffering from arterio sclerosis. It is said that Mr. Kunhardt was not informed of his condition. Mr. Kunhardt had, however, had what might be termed warnings of approaching dissolution. He had suffered from thrombosis of a small vein in one of his eyes, which had affected his eyesight. He had had indigestion. Following a walk up a hill he had had pain in his throat The...