(269 F.)

to be confined to conveyances causa mortis. While this statement was obiter, it seems to have been reflected in some at least of the subsequent decisions of the New York courts; and while the proposition above cited was definitely rejected in Re Dee's Estate (Sur.) 148 N. Y. Supp. 423, affirmed (1914) 210 N. Y. 625, 104 N. E. 1128, and conveyances inter vivos held to be embraced within the phrase "in contemplation of death," it would not be unnatural that the decisions meanwhile construing that phrase should be more or less influenced by such earlier classifications. For instance, in the Matter of Spaulding's Estate, 49 App. Div. 541, 63 N. Y. Supp. 694, affirmed 163 N. Y. 607, 57 N. E. 1124, the decision was substantially rested on the ground of lack of evidence that the conveyance was made when the grantor was in extremis, or that it was made to avoid the estate tax. In the Matter of Mahlstedt's Estate, 67 App. Div. 176, 73 N. Y. Supp. 818, 820, decided before the statute had been definitely held to apply to gifts inter vivos, the essential question was said to be whether the transfer "was made in the then belief that he was not going to get well; that it was made in contemplation of his impending death, and for the purpose of defrauding the state of the transfer tax." Manifestly, the question of intent to evade has no pertinency to the case of a purely testamentary conveyance inter vivos. Rosenthal v. People, 211 Ill. 308, 309, 71 N. E. 1121. As showing the lack of the settled construction in New York contended for by plaintiffs, it is significant that in the Crary Case, 31 Misc. Rep. 72, 64 N. Y. Supp. 566, 568, the statute was defined as said to be

"intended to reach absolute transfers of property when made under a certain condition, viz. when the transferor was contemplating death; that is, the thought of death has taken so firm a hold on his mind as to control and dictate his actions regarding his property, and the business is transacted while contemplating death, and considering what conditions would arise or exist in the event of death without making the transfer, or, to be more specific, the contemplation of death is the sole motive and cause of the transfer."

The state of mind of the grantor was, at least impliedly, recognized as the ultimate test (page 569).

The Illinois decisions fall short of supporting plaintiff's definition. In Rosenthal v. People, 211 Ill. 306, 309, 71 N. E. 1121, 1123, the only definition of "in contemplation of death" is this:

"A gift is made in contemplation of an event when it is made in expectation of that event and having it in view, and a gift made when the donor is looking forward to his death as impending, and in view of that event, is within the language of the statute."

The second half of the quotation presumably relates to the application to the statute of the facts of the case. Merrifield v. People, 212 Ill. 400, 72 N. E. 446, contains no definition of the term we are considering. The same is true of People v. Kelley, 218 Ill. 509, 515, 75 N. E. 1038, 1039. There a question of fact was alone involved, the court finding no evidence tending to show that the transferor-

"thought he was about to die at the time he executed said trust deed or that he made said trust deed in contemplation of his death."

In Re Estate of Benton, 234 Ill. 366, 370, 84 N. E. 1026, 1028, 18 L. R. A. (N. S.) 458, 14 Ann. Cas. 107, the definition given in Rosenthal v. People was cited with approval. The court, after citing both the Rosenthal and Kelley Cases, said:

"Under the law as established by the foregoing decisions, the question at issue is whether the gift was made in expectation of death, and a purpose on the part of the donor to place his estate, or some part thereof, in the hands of those whom he desired to enjoy it after his death."

It is true that in People v. Carpenter, 264 Ill. 400, 408, 106 N. E. 302, 305, the court, citing the Rosenthal and Benton Cases, remarked: "Of course, the words 'in contemplation of death,' as used in these statutes, do not mean that general expectation of all rational mortals that they will die sometime, but it means an apprehension of death which arises from some existing infirmity or impending peril."

But not only do the Rosenthal and Benton Cases fall short of fully sustaining that definition as an exclusive one, but the language we have quoted was purely obiter, as no claim was made that the trust agreements were executed "in view of death," and the decision in the trial court, as expressly stated in the opinion of the Supreme Court, did not rest on that ground. 264 Ill. 408, 106 N. E. 305.

Nor do the Wisconsin cases support plaintiff's contention. In State v. Pabst, 139 Wis. 561, 590, 121 N. W. 351, 359, it is said that the words "in contemplation of death" are—

"evidently intended to refer to an expectation of death which arises from such a bodily or mental condition as prompts persons to dispose of their property and bestow it upon those whom they regard as entitled to their bounty."

And again:

"A transfer valid as a gift inter vivos, if made under circumstances which impress it with the distinguishing characteristics of being prompted by an apprehension of impending death, occasioned by a bodily or mental state which has a basis for the apprehension that death is imminent, would be a transfer made in contemplation of death within the meaning of the law."

3

True, in State v. Thompson, 154 Wis. 320, 328, 329, 142 N. W. 647, 649, 650, 46 L. R. A. (N. S.) 790, Ann. Cas. 1915B, 1084, the court cited with approval the holdings in the Pabst Case, which we have already quoted; the quotation which we give in the margin from In re Baker's Estate (83 App. Div. 530, 533, 82 N. Y. Supp. 390-392, affirmed 178 N. Y. 575, 70 N. E. 1094, also decided before the New York statute had been authoritatively held to include gifts inter vivos), and the holding in People v. Burkhalter, 247 Ill. 600, 604, 93 N. E. 379, 380, 139 Am. St. Rep. 351, that

"Contemplation of death must be the impelling motive for making the gift in order that it be subject to an inheritance tax."

8 "This court has held that the words 'in contemplation of death' do not refer to that general expectation which every mortal entertains, but rather the apprehension which arises from some existing condition of body or some impending peril."

(269 F.)

The definitions given in these various citations are not uniform or entirely consistent. Moreover, the decision of the Thompson Case seems to have turned at the last on the question whether the grantor's age

"was so great when the gifts in question were made as to establish the fact that they were made in contemplation of death."

The California decisions are not specially pertinent, for the reason that the California statute contains a definition of the term "in contemplation of death." Estate of Reynolds, 169 Cal. 600, 147 Pac. 268; Kelly v. Woolsey, 177 Cal. 325, 170 Pac. 837; Abstract Co. v. State, 173 Cal. 691, 694, 161 Pac. 264; Spreckels v. California, 30 Cal. App. 363, 369, 158 Pac. 549; McDougald v. Wulzen, 34 Cal. App. 21, 166 Pac. 1033; In re Minor's Estate, 180 Pac. 813, 4 A. L. R. 456. It is enough to say of these decisions (a) that they are not authority for the definition contended for by plaintiff; (b) that they specifically reject the New York definition, based upon the confusion between gifts causa mortis and conveyances inter vivos. Estate of Reynolds, supra, 169 Cal. at page 603, 147 Pac. 268.

[9] Criticism is made upon the expression "reasonably distant future," contained in the extract from the charge which we print in the margin. It is, we think, not open to question that, had the word "close" instead of "distant" been used, the instruction would have been proper, so far as concerns imminency. That the trial court regarded the words as equivalent, or intended to use the words "reasonably close," appears from his opinion announced immediately before instructing the jury, in which the words "reasonably close" were used. While "close" and "distant" are frequently directly opposed to each other, yet when used as here they are not necessarily opposed. A time which is only reasonably distant is reasonably close. There was nothing in the exception to the definition as made which would call the trial court's attention to a proposition that the word "close" should have been used, instead of "distant," especially since there had been also an exception given to the court's announced intention to charge. a "reasonably close" future. Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114, 119, 120, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. Had the court's attention been called to the use of the word "distant," instead of "close," doubtless any question of difference between the two would readily have been obviated.

[10] 4. The Sufficiency of the Evidence.-The motion to direct verdict was properly overruled, if there was substantial testimony tending to support a conclusion that the conveyance was made in contemplation of death, even though the testimony would have supported a contrary conclusion, as it doubtless would. We cannot weigh the testimony. In our opinion, there was substantial testimony, and as it must be considered in its aspect most favorable to defendant, we

4 "But a transfer may be said to be made in contemplation of death if the expectation or anticipation of death in either the immediate or reasonably distant future is the moving cause of the transfer."

so state it, omitting for the most part specific mention of the considerations relied on by plaintiff, where not as matter of law decisive.

[11] Decedent was about 77 years of age when the trust deed was made. She had rheumatism of the knee, and was subject to frequent attacks of constipation, a condition said to have a tendency in elderly people to auto-intoxication. She had arteriosclerosis, which according to the medical testimony is usually fatal, and she died of apoplexy; a medical attendant testifying that in his judgment the apoplexy and death primarily resulted from hardening of the arteries, secondarily from age. She was a childless widow, and had lived most of the time for many years in the family of a sister, who was a paralytic, and who was the wife of Mr. Shwab, who was one of the beneficiaries in the deed of trust, the executor of decedent's will, and her business partner. Mr. Shwab had sole charge and management of the business, which was carried on at Nashville, Tenn., where Mr. Shwab and his family resided. During his life he was to receive the entire income from the trust estate. He was given the right to require sales of the trust securities to be made from time to time, and select substitutes therefor, and to have accountings made to him by the trustee. his death the income was to be divided among six of the children of Mr. and Mrs. Shwab, subject to letting in a seventh child on the failure of issue of any of the other six. There were other provisions not important here.

The trust deed contains an express recital of decedent's desire "to make a division of the part of her estate particularly described herein"-words naturally importing a testamentary conveyance. On May 26, 1915, slightly more than a month after the trust deed was executed, decedent, her sister, and Mr. Shwab made their respective wills. Decedent's will, after making comparatively small bequests to the sister and her children, and providing for a continuance of the business after her death, at the option of Mr. Shwab, gives the latter absolutely the bulk of her estate, the will stating that

*

"He and his wife, my sister Emma, and I have considered the disposition of our estates and agreed as to what under all the circumstances will be best for those for whom it is our desire to provide. My sister will understand why I have bequeathed nothing to her. She has an abundance and well knows my affection for her, and that I have in contemplation that form of disposition of my estate which eventually will benefit those she loves so dearly"-referring to her sister's children.

Considering the recitals we have quoted from the trust deed and decedent's will, and taking into account all the attendant circumstances, it was open to inference by the jury that the deed was intended by decedent as part and parcel of one and the same general testamentary disposition. In 1914 decedent purchased a summer home in Michigan and became at that time a resident of that state. She continued to live in her sister's family, except during the summer. While there was testimony tending to show that decedent's motive in making the trust deed was merely to avoid Tennessee taxation, the jury was not bound under the evidence to so conclude, especially in view of the fact that she had never been called upon to pay taxes upon her se

(269 F.)

curities in Tennessee, and that she was in fact a resident of Michigan when the trust deed was made. The record contains, and counsel have discussed, a variety of considerations affecting the question of motive and the broader question whether the trust deed was made in contemplation of death. We think it clear that the evidence presented a question of fact for the jury's determination.

[12] 5. The instruction that the "presumption" afforded by the prima facie clause of section 202b, which is referred to in subdivision (a) of the first division of this opinion, could be taken into account in determining the fact of "contemplation of death," was not erroneous. R. R. Co. v. Landrigan, 191 U. S. 461, 473, 474, 24 Sup. Ct. 137, 48 L. Ed. 262. The provision in question raises a presumption of fact, not a presumption of law, and under well-settled rules a presumption of fact may be taken into account in determining the ultimate fact. The presumption is merely a rule of evidence whose enactment is within the legislative competency. Mobile, etc., R. R. Co. v. Turnipseed, 219 U. S. 35, 42, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463. The very object of a presumption of fact is to supply the place of facts. Lincoln v. French, 105 Ù. S. U. 614, 617, 26 L. Ed. 1189. Of course, a presumption can never be allowed against ascertained and established facts. But unless the statutory presumption may properly be taken into account in determining the ultimate fact, it has no office. Elements which, in the absence of evidence to the contrary, are made sufficient to conclusively establish the ultimate fact, cannot be said to have no evidentiary influence in reaching that conclusion.

[13] 6. Admission and Exclusion of Evidence.-We find no reversible error in either of the respects complained of. The witness Spicer was not shown competent to answer the question put to him. It was plainly incompetent for Mr. Shwab to state a fact which was for the ultimate conclusion of the jury, viz. whether Mrs. Dickel had any expectation that she was in danger of passing away in the near future.

[14] It was also plainly incompetent for the witness Hager to testify that he understood that Mrs. Shwab, Mr. Shwab, and Mrs. Dickel made their wills together, "so that they would not excite Mrs. Shwab." He apparently had no first-hand knowledge of the matter.

[15] As to the inquiry of Mr. Shwab, on cross-examination, respecting the inclusion in Mrs. Dickel's income tax return of the first year's income under the trust deed: The court had already held that the income tax returns were not admissible. The question asked Mr. Shwab regarding the making of such return was objected to only as "immaterial." No exception was taken to the overruling of the objection. The subject was, in our opinion, material. He then testified, without objection, that the first year's income from the trust estate was included in that income tax return as part of Mrs. Dickel's income. It was only after the question had been substantially repeated that it was objected to as "incompetent, immaterial, and irrelevant," but without statement of the ground of the asserted incompetency, and without motion to strike out the testimony already