Action to impress a trust upon real property. The father of the parties died intestate seized of the property, which was conveyed to respondent by appellants and their brothers. Judgment has been entered, after trial by the court, dismissing the complaint upon the ground that the deed was executed with the intent and purpose of defrauding the State of the estate tax upon the father's estate. Judgment reversed upon the law and the facts and a new trial granted, with costs to appellants to abide the event. The evidence in this record of the conversations and transactions between the parties prior to the execution and delivery of the deed is sharply disputed and contradictory, and there is no finding by the trial court stating which version thereof is credited. There is no evidence upon which it may be determined whether or not there was an estate tax due upon the father's estate, and, hence, no proof that there existed a debt or charge which could have been hindered or delayed, nor that there was a creditor who could be defrauded. (Restatement, Trusts, § 63, p. 200; Tiedemann v. Tiedemann, 201 App. Div. 614, affd. 236 N.Y. 534; Kremer v. v. Kremer, 51 N.Y.S.2d 394, affd. 269 App. Div. 827; Baker v. Gilman, 52 Barb. 26.) Moreover, had there been proof establishing that an estate tax was payable on the father's estate, the conveyance in question would not have defeated its collection. (Tax Law, § 249-bb.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.