DocketNumber： Docket Nos. 12099, 13072.
Citation Numbers： 13 B.T.A. 828, 1928 BTA LEXIS 3176
Judges： Trammell
Filed Date： 10/8/1928
Status： Precedential
Modified Date： 10/19/2024
*3176
*828 These proceedings, which were consolidated, are for the redetermination of a deficiency in estate tax of $1,859.51. The deficiency results in part from the respondent's including in the decedent's gross estate as a transfer in contemplation of death an amount of $29,244, *829 representing the value of certain real property transferred by the decedent to his wife, the executrix of the estate within 2 years prior to his death.
FINDINGS OF FACT.
George A. Wheelock, whose estate is involved in these proceedings, died on November 10, 1922, leaving a last will and testament dated January 12, 1922. Julia E. Wheelock, the decedent's wife, is the sole executrix and beneficiary under the will. At the time of his death, Wheelock was a resident of the County of New York, State of New York.
On September 12, 1921, Wheelock transferred to his wife certain*3177 real property situated in the Borough of Manhattan, City, County, and State of New York, and known as No. 3 West 86th St., subject to an unpaid mortgage of $25,000 which the wife assumed. The consideration recited in the deed was $1 and love and affection.
As a result of proceedings in the Surrogate's Court for New York County, New York, in the summer of 1923, Wheelock was declared to possess testamentary capacity at the time he executed his will on January 12, 1922.
In the return filed for Federal estate-tax purposes the transfer of the real estate referred to above was reported and this property was shown as having a fair market value of not to exceed $45,000. The amount of the mortgage on the property with the accrued interest thereon was shown as $24,756. No part of the $45,000 was included in the decedent's estate for tax purposes.
In an audit of the return the respondent determined that the property in question was transferred by the decedent in contemplation of death and, having determined that the value of the interest transferred was $29,244, included that amount in the gross estate for tax purposes. The total value of the gross estate as determined by the respondent*3178 was $415,170.57 and the value of the net estate was $260,412.51.
About July 11, 1913, the decedent borrowed from his wife $15,000, giving his note for that amount, which bore interest at 6 per cent per annum. About December 1, 1913, he also borrowed $15,000 from his wife, giving his note for that amount, which bore interest at 6 per cent. These notes, with the accrued and unpaid interest thereon at November 10, 1922, the date of the decedent's death, amounted to $46,052.50, which was taken as a deduction representing the debts of the decedent in the return filed for estate-tax purposes. The amount was allowed by the respondent in determining the tax liability of the estate.
On February 26, 1922, Wheelock was examined for a rectal trouble which he had had for years by Dr. Jerome Wagner, who informed *830 him that an operation was about the only thing that would relieve his condition. Wheelock, however, was opposed to an operation. During the latter part of the same month, or early in March, Wheelock was examined and treated for the same trouble by Dr. Thomas F. De Naouly. About March 15, 1922, Dr. De Naouly was again called in to see Wheelock and at that time found*3179 him to be suffering from the delayed effects of alcoholism.
On May 2, 1922, Wheelock was examined by a Dr. Abram Arden Brill at Dr. Brill's office and found to be suffering from general paresis. On May 5, 1922, Wheelock was again examined in Dr. Brill's office, but by Dr. Menas S. Gregory, who found him suffering from the mental and physical symptoms of a very clear case of general paresis in a very advanced condition.
In the afternoon of May 5, 1922, Wheelock, after acting irrational for a while, had a convulsion. Dr. De Naouly was called in and he found Wheelock in a state of coma, from which he emerged into a semicomatose condition, about which time he had another convulsion localized to the muscles of the neck and face. Upon the advice of Dr. De Naouly, Wheelock was taken to Bellevue hospital for observation purposes and was placed in a psycopathic ward. Subsequently, Wheelock was taken home from the hospital and afterwards was examined there by Drs. Wagner and Gregory, who found him to be suffering from paresis. On May 12, 1922, Wheelock was examined at his home by Dr. Frederick Tilney, Dr. Wagner being present. Dr. Tilney reached the same conclusion as the other physicians*3180 as to the disease with which Wheelock was afflicted. Wheelock's death on November 10, 1922, was caused by paresis.
In July, 1922, Wheelock was declared incompetent by the Supreme Court of New York, and about August 3, 1922, his wife and the American Trust Co. were appointed committee of his person and property.
OPINION.
TRAMMELL: The only issue involved in these proceedings is whether the respondent erred in including in the gross estate of the decedent, as a transfer in contemplation of death, the value of the property transferred by him to his wife, Julia E. Wheelock, on September 12, 1921. There is no controversy between the parties as to the value of the property in question.
Section 402 of the Revenue Act of 1921 provides in part as follows:
That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated -
* * *
(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a *831 trust, in contemplation of or intended to take effect in*3181 possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money's worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.
Inasmuch as the transfer in question was made approximately 14 months prior to the death of the decedent, there is a presumption under the statute that such transfer was made in contemplation of death.
The phrase "in contemplation of death" has been held to mean not that general contemplation of death which is present with all persons, knowing as they do that at some time they must die, but that state of mind or present apprehension resulting from some existing bodily or mental condition or other producing cause which leads to the conviction that death is to be anticipated within a reasonable time in the near future. *3182 ; ; ; .
Much evidence has been submitted as to the mental and physical condition of the decedent during the year 1922 and especially in the month of May of that year, but the record is very meager as to his mental and physical condition on September 12, 1921, the date of the transfer, nor does it disclose very much as to the facts and circumstances surrounding the transfer.
While the evidence indicates that up until the early part of May, 1922, Wheelock was acting rationally, the weight of the evidence is that he was suffering from the disease which caused his death at least as far back as September, 1921. One physician who examined him in May, 1922, testified that in his opinion he had had the disease for at least a year prior to that time. Another physician testified that when he examined him in May, 1922, the disease was in a very advanced condition. Another physician testified that paresis always terminates fatally, and, while it may cause death in as short*3183 a period as three months, it is generally accepted that the duration of the disease is from two to four years.
Although as a result of the proceeding in the Surrogate's Court in 1923 Wheelock was declared to possess testamentary capacity at the time he executed his will on January 12, 1922, we do not think that such a declaration would be inconsistent with the conclusion that Wheelock had paresis on September 12, 1921, that he knew that he had this disease and also knew of its fatal character. It is also to be observed that the will was made only four months after the transfer.
*832 From a consideration of all the evidence in the case, we do not think that the petitioner has overcome the presumption created by statute that the transfer was made in contemplation of death.
In the petitioner's brief the statement is made that the value of the property involved was not a material part of the decedent's property when considered in connection with the whole of his estate subsequently bequeathed to his wife. We think, however, that it was a material part of the decedent's estate. See *3184 . From a consideration of the facts in these proceedings, we are of the opinion that the respondent did not err in including in the gross estate of the decedent as a transfer in contemplation of death the value of the property transferred by the decedent to his wife on September 12, 1921.