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Dommerich v. Kelly

New Jersey Supreme Court


Decided: September 14, 1944.

CAROLINE C. DOMMERICH, LOUIS F. DOMMERICH AND THE NATIONAL CITY BANK OF NEW YORK, EXECUTORS OF THE LAST WILL AND TESTAMENT OF OTTO L. DOMMERICH, DECEASED, PROSECUTORS-APPELLANTS,
v.
WILLIAM D. KELLY, STATE TAX COMMISSIONER, DEFENDANT-RESPONDENT

On appeal from the Supreme Court, whose opinion is reported in 130 N.J.L. 542.

For the prosecutors-appellants, Milton, McNulty & Augelli (John Milton, of counsel).

For the defendant-respondent, Walter D. Van Riper, Attorney-General (William A. Moore, of counsel).

[132 NJL Page 142]

PER CURIAM.

This is an appeal from a Supreme Court judgment on certiorari affirming a decree of the Prerogative Court imposing a transfer inheritance tax upon certain gifts inter vivos made by the decedent, Otto L. Dommerich. On certiorari, in matters of this character, it is the Supreme Court's prerogative and duty to find the facts. It is argued here that the Supreme Court did not find the facts independently of the Prerogative Court but merely approved the fact findings of that court. We cannot accept this view but think that the Supreme Court sufficiently found the facts and made its own conclusions thereon. That being so, the fact issue of whether the transfers were made in anticipation of death is res adjudicata and it is not open to us to arrive at a different fact conclusion (even on the assumption that we would be inclined so to do were we empowered to make an independent investigation and appraisal) so long as there was evidence to sustain the findings of fact of the Supreme Court.

The judgment under review is accordingly affirmed.

For affirmance -- THE CHIEF JUSTICE, CASE, BODINE, DONGES, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 12.

For reversal -- None.

19440914


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