Price, Schettino and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Plaintiff appeals from a transfer inheritance tax assessment levied by the Director of Taxation and bottomed upon findings that certain inter vivos gifts made by decedent Clara G. Swain were made in contemplation of death.
On December 16, 1955 Clara G. Swain made gifts of shares of stock of Standard Oil Company of New Jersey as follows: (1) to a daughter, Emily S. Seaman, $32,780; (2) to William F. Seaman, husband of Emily, $2,980; (3) to a widowed daughter-in-law, Edna Swain, $2,980; (4) to a granddaughter, Virginia Swain, $2,980. The values set forth above are calculated upon the market value of the stock as of the date of transfer.
Clara G. Swain died on February 13, 1956 at the age of 87 years, leaving a gross estate which was valued for tax purposes at $87,193.54.
After a hearing the examiner filed his findings, which read in part as follows:
"The proofs do not satisfactorily establish clearly that the gifts are untaxable under the mandate of the Legislature as contemplated in the applicable statute, R.S. 54:34-1. Nor do they appear to be clearly untaxable under the applicable rules laid down by our courts." (Emphasis supplied)
R.S. 54:34-1, the pertinent statute, reads, as far as here material, as follows:
"c. Where real or tangible personal property within this state of a resident of this state or intangible personal property wherever situate of a resident of this state or real or tangible personal property within this state of a nonresident, is transferred by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.
A transfer by deed, grant, bargain, sale or gift made without adequate valuable consideration and within three years prior to the death of the grantor, vendor or donor of a material part of his estate or in the nature of a final disposition or distribution thereof, shall, in the absence of proof to the contrary, be deemed to have been made in contemplation of death within the meaning of paragraph 'c' of this section; but no such transfer made prior to such three-year period shall be deemed or held to have been made in contemplation of death."
Where a gift is made within three years prior to a donor's decease a presumption arises that the gift is made in contemplation of death and the burden is then on the taxpayer to rebut such presumption. R.S. 54:34-1(c); First National Bank and Trust Company v. Zink , 1 N.J. Super. 265 (App. Div. 1949); Laube v. Zink , 4 N.J. Super. 19 (App. Div. 1949).
Plaintiff contends, inter alia , that the examiner applied an erroneous theory of law and required her to bear a greater burden of proof than the law requires in that he required that the "proofs [must] satisfactorily clearly establish" that the gifts were not made in contemplation of death. Defendant contends that proof is the result of evidence and should be distinguished therefrom. He asserts that plaintiff must come forward with "proof" and not simply contradictory evidence to rebut the presumption. He argues that proof is not synonymous with evidence. He asserts that this "proof" should consist of evidence which "must be not only such as will exclude the statutory ...