In re Green's Estate

securities and all investments of the same, and to reinvest the proceeds in his discretion. The securities referred to in the trust deed were thereupon delivered to the trustee, and have ever since remained in his possession and under his control. On the 14th of November, 1800, the de'ed above mentioned was modified by written agreement, executed by the said decedent and trustee, so as to provide that the share of one of the nieces should be kept in trust for her by the trustee during her life, and the principal, upon her death, should be paid to her issue when the said issue should reach twenty-one years of age. It was further modified by an agreement executed by the do cedent and the said trustee on the 28th of October, 1891, by providing for the disposition of the respective shares in case of the death of the beneficiaries without issue. During the lifetime of the said decedent the trustee collected the income of the securities, and paid the same over to her periodically. The appraiser reported (an order was entered in conformity therewith) that the transfer of the property under the trust deeds referred to was made in contemplation of the death of said decedent, or was intended to take effect in possession or enjoyment at or after her said death, and that the said property is subject to the payment of the tax imposed by law. The propriety of-the ex parte order entered on the appraiser’s report must be determined by reference to chapter 399 of the Laws of 1892, the law in existence at the date of the decedent’s death. That law has recently been construed by the court of appeals in Re Seaman’s Estate, 41 N. E. 401 , and a reference to the opinion in that case will show that the transfer in the case at bar can only be held liable to taxation upon one of two assumptions: First, that it was a gift mortis causa; or, second, that it was a conveyance in contemplation of death, to take effect upon the happening of that event, or reserving a power of revocation as well as the possession or enjoyment during the lifetime of the grantor. It will hardly be claimed that the transfer in question constituted a donatio mortis causa, for it lacks the essential requisite to such a gift of having been made in apprehension of death, and its effectiveness being dependent upon that event. The discussion is therefore necessarily confined to a consideration of whether the transfer was to take effect upon the happening of the death, or whether a power of revocation was reserved in the instrument, as well as the possession or enjoyment of the property during the lifetime of the donor. I am of the opinion that the transfer became effective upon the execution of the deed and the delivery of the securities in conformity therewith, and that the donees mentioned therein take a vested interest, liable, of course, to be defeated by their failure to survive the lifetime of the donor, or to any modification that might be agreed upon under its terms between the trustee and the donor. It was, therefore, the perfected transfer in the nature of a gift inter vivos, and not taxable. In re David’s Estate,^[1] i It is claimed by and on behalf of the state that the power of revocation reserved in the deed rendered the transfer in its nature" incomplete ánd ambulatory. It will be observed, however, that this power to revócate or modify required the "assent of both parties thereto. The trustee stands' in the same position as the donor. If the trustee desired to modify the instrument, he may do so only with the consent of the donor; and if the donor wishes to modify the instrument, she could do so only with the consent of the trustee. For all practical purposes, such a provision in the deed might have been omitted, for it simply states what would have been the rights of the parties thereto under the law. As between the parties to the transaction, the effect of a gift, if completely executed, is to effectually transfer the full title and ownership of the property from the donor to the donee, as much so as if the article had been sold for a valuable consideration. It is not, then, in the power of either the donor or donee to revoke it without the consent of the other. 8 Am. & Eng. Ene. Law, 1339, and cases cited. It is only when some-