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Dommerich v. Kelly

Decided: October 4, 1943.

CAROLINE E. DOMMERICH ET AL., PROSECUTORS,
v.
WILLIAM D. KELLY, STATE TAX COMMISSIONER, RESPONDENT



On certiorari to decree of the Prerogative Court advised by Vice-Ordinary Jayne, whose opinion is reported in 132 N.J. Eq. 220.

For the prosecutors, Pitney, Hardin & Ward (Charles R. Hardin, of counsel).

For the respondent, David T. Wilentz, Attorney-General (William A. Moore, of counsel).

Before Justices Parker, Heher and Perskie.

Parker

The opinion of the court was delivered by

PARKER, J. The only question raised on this appeal is one of fact, namely, whether three inter vivos trusts set up by the decedent, Otto L. Dommerich, in December, 1935, a little more than two years before his death, were, in fact, gifts in contemplation of death, and consequently taxable. Under the statute in effect at the date of the transfer, Pamph. L. 1935, p. 264, and likewise under the statute in effect at the date of death, R.S. 54:34-1, subdivision C, as the interval between the transfer and the death was over two years, the presumption of fact provided by the second paragraph of that subdivision did not arise, and "contemplation of death" was a fact to be proved. Proofs were taken accordingly before the State Tax Commissioner, who held that the transfers in question were made in contemplation of death: and on appeal to the Prerogative Court the finding of the Commissioner was affirmed, ubi supra.

We have carefully examined and considered the proofs in the cause and the arguments and briefs of counsel, and concur in the result reached in the Prerogative Court and in the findings of fact on which it is based.

The decree under review is ...


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