and 112 New York State Reporter works to make a contract in terms like the one before us, we shall not have sufficient data for a proper determination of the matter. It must be admitted, I think, that the superintendent of public works had no power to create a contract debt on the part of the state beyond the $9,000,000 voted by the people under section 4, art. 7, of the constitution. Nor had the state the power to authorize the creation of a debt beyond that sum. Hence it would seem that, if the aggregate of the contracts let contemplated the expenditure of a greater sum, then, as to such excess, they are not enforceable against the state. It would, perhaps, seem plainer if the entire improvement was under a single contract. No one, I apprehend, would then say that a contract involving an indebtedness of $20,000,000, where a debt of only $9,000,000 was authorized, could be enforced beyond the $9,000,000 appropriated. This seems to have been clear to the legislature in conferring upon the superintendent of public works the power to contract. The legislature intended to keep within its constitutional powers, and did not intend that the aggregated contracts should involve the making of improvements beyond the sum voted by the people. This is plain from the reading of the act of 1895 (chapter 79), and the act as amended in 1896 (chapter 794). By the amendment of 1896 it was provided that: "None of the work called for by this act shall be contracted for until the state engineer shall have ascertained with all practicable accuracy the quantity of embankment, excavation, masonry, the quantity and quality of all materials to be used and all other items of work to be placed under contract, and a statement thereof, with the maps, plans and specifications, corresponding to those adopted by the canal board, and on file in the office of the state engineer, is publicly exhibited to every person proposing or desiring to make a proposal for such work. The quantities contained in such statement shall be used in determining the cost of such work." The act then provides for filing the proper maps, etc., with the state engineer, and that no alteration shall be made in the specification or the plan of any work under contract during its progress, except an approval of such alteration be in writing, signed by the parties. "No change of plan which shall increase the expense of any such work, or create any claim against the state for damages arising therefrom, shall be made," unless a written statement is submitted to the canal board, and their assent is obtained. It is here contemplated that the bids should be for specific work, and the price bid should determine the cost of the improvement contracted to be done. Safeguards are provided against any increase over the sum bid, and, if these directions were adhered to, it was reasonable to suppose that the aggregate of the sums bid would fairly determine the whole cost of the entire improvements contracted for. If the aggregate of these bids were within the $9,000,000, it would seem that the contracts, up to the bids made on each, would have been authorized. I assume that such was the fact, to wit, that the aggregate of these bids were within that sum, though this record shows nothing on the subject. If the sum of these bids practically exhausted the $9,000,000, I do not see how there remained any room for expansion in any contract; and the elastic quality in the direction of increase over the sum bid in any contract would seem, under this theory, to have been prohibited. I deduce from this that the $9,000,000 was, at the time. the bids were accepted and contracts entered into, divided up, and to each contract was apportioned the sum stated in the bid, which the law said should "determine the cost of the work"; and if the contract, in terms, contemplated the expenditure of any sum beyond the sum so apportioned, it was to that extent unauthorized. For the same reason it would seem, also, that if any sum has been paid to any contractor, beyond the sum bid, such payment was unauthorized, because there was no fund from which it could be lawfully paid; and it could not be properly taken from the sum apportioned to any other contractor. If we are right in this theory of an apportionment of the $9,000,000 to the several contractors up to the amount of their bids, we are led to the conclusion that each contract was binding upon the state up to the amount of the bid and not beyond, provided, of course, that the aggregate of the bids did not exceed $9,000,000, and that any abandonment by the state of any contract before the amount of the bid had been exhausted was a breach, and entitled the contractor to prospective profits for work undone up to the amount of his bid, and no more. A retrial of this case will doubtless develop the necessary facts suggested, and inade necessary to the record for a proper disposition of the claim. Section 10 of article 7 of the constitution cannot here be invoked to give legality to the contracts made under the $9,000,000 act. There does not appear to have been any money in the treasury applicable to the improvements contemplated, nor did the legislature appropriate any money from the treasury. The legislature might levy a tax and appropriate money for improvements contemplated to be made, but this clause does not authorize the creation of an indebtedness, nor the raising of money to pay an unauthorized indebtedness; otherwise the limitation of section 4 of this article of the constitution might be made wholly inoperative. Our conclusion that the contract has been abandoned on the part of the state entitles the claimant to a judgment for money conceded to be due for the work actually done, and for the sum deposited as security for performance of the contract. And if the facts shall prove to be what has been suggested that they really are, viz., that the aggregate of the contracts, upon their face, as shown by the estimates and bids, was not in excess of the $9,000,000 voted, the plaintiff may be entitled to such damages as he can show he has suffered by reason of the abandonment on the part of the state before the sum of $98,760, the amount of plaintiff's bid on the estimate presented, was exhausted. The judgment of the court of claims is reversed, with costs, and a new trial before the court of claims is directed. All concur. 78 N.Y.S.-59 and 112 New York State Reporter In re MILLER'S ESTATE. (Supreme Court, Appellate Division, Second Department. December 2, 1902.) 1. PRESUMPTIONS-INSTRUMENTS BEARING DIFFERENT DATES. Instruments executed on different dates are presumed to be separate and distinct, and not part of the same transaction. 2. TRANSFER TAX-PROPERTY SUBJECT-BURDEN OF PROOF. The state has the burden of proving that property is subject to the transfer tax. 8. CONTRACT-CONSIDERATIONS-AGREEMENT OF MARRIAGE. An agreement of marriage is a valid consideration for a transfer of property. 4. TRANSFER TAX-PROPERTY SUBJECT. A man executed an antenuptial agreement whereby he transferred to his intended wife certain certificates of stock. The next day, “in consideration of the intended intermarriage," she transferred the same stock back to him as trustee, to hold subject to her approval, and to "apply to the mutual use of the parties the interest and income arising therefrom during the joint lives of said parties." The agreement further provided that in case the wife should die first the property should become the absolute property of the husband, and, if the husband died first, it should revert to the wife. The husband died eight years thereafter; his will, which was dated about one year before his death, reciting that he reaffirmed the said transfer, "and do give and bequeath all the right. title, and interest I may have, if any, in and to the said stock, to my said wife." Held not to constitute a gift to the wife "in contemplation of death," and therefore not to be subject to the transfer tax imposed by section 220, subsec. 3, of the tax law (Laws 1896, c. 908). Appeal from surrogate's court, Dutchess county. In the matter of the estate of Charles Miller, deceased. From a decree of the surrogate (75 N. Y. Supp. 929) fixing a tax on 2,000 shares of stock mentioned in the second clause of the decedent's will, Gertrude B. Miller, the claimant, appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ. Frederick Kellogg, for appellant. Wm. Morgan Lee, for respondent state comptroller. GOODRICH, P. J. The surrogate of Dutchess made an order adjudging that a transfer of stock in an Illinois corporation by the testator, Charles Miller, to Gertrude B. Tefft, was made in contemplation of his death, and that the stock or its equivalent is subject to the payment of the tax imposed by section 220 of the tax law (chapter 908, Laws 1896), under the third subsection, reading: "(3) When the transfer is of property made by a resident or by a nonresident, when such nonresident's property is within this state, 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. The facts out of which this controversy arises are practically undisputed. On April 7, 1893, Miller made an antenuptial written agreement, reciting his intended marriage with Miss Tefft, and his desire to make pecuniary provision for her, and providing that in consid 13. See Contracts, vol. 11, Cent. Dig. § 239. eration thereof he "doth assign, transfer, grant, and set over and deliver, at the time of the delivery hereof, unto the said party of the second part, two thousand (2,000) shares of the preferred capital stock of the Phoenix Horseshoe Company of Illinois, and the certificate thereof, numbered thirteen (13)." On April 8th, Miller and Miss Tefft entered into another agreement, stated to be in duplicate, wherein, "in consideration of the intended intermarriage of the parties," Miss Tefft "doth assign, transfer, grant, and set over unto" Miller "two thousand (2,000) shares of the preferred capital stock of the Phoenix Horseshoe Company of Illinois, and the certificate thereof, numbered (13)," upon the trust "To invest and reinvest the same in the purchase of real or personal property, and to change the investments as he may, in his discretion, subject to the approval of the said party of the first part [Miss Tefft], think most advantageous, free from any limitations or restrictions prescribed by law relative to the kind of investments allowed for trust funds, and to receive, appropriate, and apply to the mutual use of the parties to these presents the interest and income arising therefrom during the joint lives of said parties. Upon the death of either of the parties hereto, the trust hereby created shall terminate and come to an end; and in case the party of the first part should first die, leaving the party of the second part [Miller] surviving her, the said property hereinabove granted and assigned, and the investments representing the same, shall thereupon become and be the absolute property of the party of the second part, freed from all trusts and conditions whatsoever; and in case the party of the second part should first die, leaving the party of the first part surviving him, then and in that case the said property, and the said investments representing the same, shall revert to the said party of the first part, and she hereby reserves the same in that event to herself, in absolute ownership, free from all trusts and conditions whatsoever. Said party of the second part, in consideration of the premises, and of the sum of one dollar to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, does hereby acknowledge the delivery to him of the preferred stock and the certificate therefor within described, and does accept the same upon and subject to the trusts hereinbefore specified, and hereby agrees to hold, use, manage, and account for the said property, and the investments representing the same, subject to the terms, conditions, and provisions herein before recited." The parties have stipulated in the record that Mr. Miller and Miss Tefft were married on April 8th, subsequently to the execution of said instruments; that Miller died on January 19, 1901, leaving a will dated January 17, 1900, which has been admitted to probate by the surrogate of the county of Dutchess. The will contained the following provision: "Second. Whereas, I have heretofore set apart and transferred to my wife, Gertrude Benchley Miller, two thousand (2,000) shares of the capital stock of the Phoenix Horseshoe Company of Illinois, of the par value of two hundred thousand dollars ($200,000), which stock I now hold under a certain deed of trust executed by my said wife to use [sic], bearing date the 7th day of April, 1893. I do hereby reaffirm the said transfer, and do give and bequeath all the right, title, and interest I may have, if any, in and to the said two thousand (2,000) shares of stock, and in and to all the property in which the same may stand invested under the said trust deed at the time of my death, to my said wife, absolutely." There is in the record, also, an affidavit by Elisha H. Miller, one of the sons of the testator, and one of the executors of his will, and apparently considered a part of the evidence, in which he says: and 112 New York State Reporter "The two thousand shares of the stock of the Phoenix Horseshoe Company, mentioned in the second clause of the will, were transferred by my father to Gertrude B. Tefft by a deed of absolute assignment dated April 7, 1893. in contemplation of his marriage with her. On the following day Gertrude B. Tefft conveyed the said shares to my father by a deed of trust dated April 8, 1893." This comprises the entire evidence upon which the learned surrogate based the following findings: "(1) That the transfer by Charles Miller to Gertrude B. Tefft, made on or about April 8, 1893, of two thousand (2,000) shares of the preferred stock of the Phoenix Horseshoe Company, of the par value of $100 per share, was made in contemplation of the death of the said Charles Miller, and was not intended to take effect, in possession or enjoyment, until at and after his death. (2) That the said 2,000 shares of stock referred to, valued at $180,000, or its equivalent, is subject to a transfer tax of one per cent., amounting to $1,800." As there was no oral, but only documentary, evidence, we are in just as good a position to form an opinion as to the main point on which the decision of the appeal must rest as was the surrogate. He rested his decision absolutely and necessarily upon his finding that the agreements of April 7th and April 8th were contemporaneous, and were made in contemplation of the death of Miller. If the instruments were not parts of the same transaction, and if the transfer of the stock to Miss Tefft on April 7th was a completed transaction, the reasons of the surrogate do not control the situation. In order to an intelligent discussion of the subject, I quote a portion of his opinion: "No evidence as to the intent of the parties is presented, except such as is contained in the agreements and in the will of Charles Miller. It is evident to me that the agreements were drawn with a view to the situation that has since arisen. The evidence of the second agreement being contemplated when the first was executed, so far as the instruments themselves furnish, is their proximity of execution; the transfer of precisely the same property for the same consideration. It may be reasonably inferred from the character of the property that Mr. Miller would be disinclined to devest himself of all authority over it, and not only lose the value of its influence to him as a stockholder, but make it possible for it to pass into the hands of those who might antagonize his interests. Irrespective of this evidence and Inference, I am unable to supply any reason for the execution of the second agreement before the consideration for the first had become operative, if the second was not in contemplation when the first was executed. Certainly the lapse of a few hours between their execution, if such is the fact, will not suffice to defeat the legislative intent to apply a tax to transfers of personal property made in contemplation of death, or intended to take effect in possession or enjoyment at or after such death. The provision in the will indicates that the testator did not intend to devest himself of the rights of ownership, possession, and enjoyment, which must pass by a transfer to take it without the scope of the act." His first proposition (and this seems to me to be the crucial point of the whole matter) is that the agreements and transactions of April 7th and April 8th were contemporaneous and parts of one transaction, and were so intended by Miller. Of this he correctly says there is no evidence, except the agreements themselves and the will. This being true, I think the learned surrogate has given reins to his imagination, and has permitted surmise and suspicion to take the place of presumption and legal deduction. As the instruments were exe |