dissenting: This is a case of antenuptial agreement and gift tax. Commissioner v. Wemyss, 324 U. S. 303, and Merrill v. Fahs, 324 U. S. 308, made it altogether plain that a transfer pursuant to antenuptial contract is subject to the gift tax. The majority herein holds that such a transfer is not subject to the gift tax, apparently because of the view that a binding antenuptial contract having been made in 1931 when there was no gift tax law, the gift was then made, though the transfers, that is, the assignments of corporate stock in compliance with the antenuptial agreement, were made in 1936 and 1944 when a gift tax law was in effect. Such a conclusion, in my opinion, is directly opposed to the primary principle that a gift to be effective must be fully executed, that the words alone do not make a gift, that if anything remains to be done there is mere executory agreement, title has not passed, and until followed by surrender of possession or dominion over the subject matter, the gift is not complete. 24 Am. Jur. 741, 742; 38 C. J. S. 793-4; Union Trust Co. v. United States, 54 Fed. (2d) 152 (Court of Claims), certiorari denied, 286 U. S. 547. That was a suit to recover estate taxes from the United States on the theory certain stock had in the decedent’s lifetime been conveyed as gifts inter vivos, therefore was not to be included in gross estate.
The decedent agreed in writing to make gifts of the stock to his wife, and assigned the certificates in blank, placed them in sealed envelopes, and delivered them to Union Trust Company, as trustee, to hold for the joint lives of decedent and his wife, for delivery to the survivor. Decedent was during his life to receive the dividends. The plaintiff contended, in effect, as does the petitioner here, that the written agreements showed intent to make absolute gifts, that they were fully consummated and completed by delivery of the stocks to the trust company. The court said, inter alia,
* * * One of the requisites to a valid gift inter vivos is the delivery of the thing given, and the delivery must be such as to vest the donee with control and dominion over the property and to absolutely divest the donor of his possession and control. Until such delivery has been made title to the property does not vest in the donee. * * *
The court held that the trustee was agent or trustee for both parties in court, that title could therefore pass to the wife only when the stocks were turned over to her in accordance with the agreements, and he was divested of dominion and control, and that therefore there was no consummation of gift. The written agreements were made in 1912. The estate tax involved was assessed under section 302 of the Bevenue Act of 1924. Pointing out .that under Nichols v. Goolidge, 274 U. S. 531, an estate tax could not constitutionally be applied to a gift inter vivos (not in contemplation of death) made prior to adoption of the estate tax, the court said that the case was not in point in the instant case “where the property of the gifts passed and became vested subsequent to the effective date of the taxing statute.” The plaintiff’s claim for refund was therefore rejected. See also Basket v. Hassell, 107 U. S. 602.
The contract here involved provided for no immediate passage of title, but, on the contrary, it was “to be effective immediately after the solemnization of said marriage.” Delivery was in fact delayed for several years. In my view, a completed gift can not be found in 1931. That the contract was enforceable does not remove this gift from the intendment of the gift tax act as contended in the Wemyss and Merrill v. Fahs cases, supra; therefore I think it was clearly taxable as such in 1936 and 1944 when delivery was consummated. The subject matter of a gift must be “wholly under the donee’s power.” Pomeroy Equity Jurisprudence, paragraph 1149. Harris v. Commissioner, 178 Fed. (2d) 861. upon which the majority relies, involved a contract between husband and wife in connection with divorce. We have in Norman Taurog. 11 T. C. 1016. William Barclay Harding, 11 T. C. 1051, and other cases, held that such a contract is for full consideration, not subject to gift tax. The case is therefore peculiarly without logical effect in this one. In any event, in my opinion, the whole tenor of the law of completed gift forbids the majority conclusion here. I therefore dissent.
Hill, J., agrees with this dissent.