dissenting: Decision in this case is for the petitioner upon the authority of Frances Biddle Trust, 3 T. C. 832. I think that that case is distinguishable from the instant one upon its facts. There, the decedent had created a trust for the benefit of her son. By the trust instrument the decedent provided:
* * * if there are no children or the issue 9f deceased children of Sydney G. Biddle living at the time of his decease, then this Trust shall forthwith cease and terminate and the property made the subject of this Trust shall revert to and become a part of the Estate of Prances Biddle, and Philadelphia Trust Company shall have full and complete power and authority to transfer, assign and set over all and any of the securities and property at that time held in this Trust to the legal representatives of the said Estate of Prances Biddle.
The decedent in that case did not provide that any part of the assets of the trust should revert to her if living at the date of the death of her son and descendants. She simply provided for a complete disposition of the trust assets in case there were no descendants of her son living at the date of the termination of the trust. No interest in the trust was terminable at her death.
The facts in the instant case are quite different. The decedent, and grantor of the trust, provided that, if all of the named beneficiaries and issue of beneficiaries should die before he did, the trustee was to turn the property back to him. He was to repossess the property in the event of such contingency.
In Helvering v. St. Louis Union Trust Co., 296 U. S. 39, the Court stated the facts to be as follows:
The decedent, several years prior to his death, transferred to a trustee certain securities in trust, to be held, managed, and disposed of as an active trust, tlie net income thereof to be paid to the decedent’s daughter during her life, with remainder over to the persons named. The trustee was given discretionary power to terminate the trust whenever the trustee might deem it wise to do so, whereupon the estate was to revert to the grantor. The indenture contained a further provision that if the daughter predecease the grantor, the trust shall terminate and the trust estate be transferred, paid over, and delivered to the grantor, to be his absolutely. * * *
The Supreme Court held in an opinion written by Mr. Justice Sutherland, who also wrote the opinion in Klein v. United States, 283 U. S. 231, that no part of the trust assets was to be included in the gross estate of the decedent grantor. He stated:
* * * His death passed no interest to any of the beneficiaries of the trust, and enlarged none beyond what was conveyed by the indenture. His death simply put an end to what, at best, was a mere possibility of' a reverter' by extinguishing it; that is to say, by converting what was merely possible into an utter impossibility. * * *
Much the same facts obtained in Becker v. St. Louis Union Trust Co., 296 U. S. 48. It was held that the grantor’s irrevocable transfer to himself of property in trust for his children on condition that each trust should revert to the grantor, if the child, who was beneficiary thereunder, should predecease the grantor, was not a trust taxable as one “intended to take effect in possession or enjoyment at or after death.”
In Helvering v. Hallock, 309 U. S. 106, the reasoning of the Court in the two St. Louis Trust cases was condemned. The Court said:
* * * We therefore reject as untenable the diversities taken in the St. Louis Trust cases in applying the Klein doctrine — untenable because they drastically eat into the principle which those cases professed to accept and to which we adhere.
The only substantial difference which I can see between the facts in the instant proceeding and those in the above cited St. Louis Union Trust Co. cases is that here the possibility of reverter was more remote than in those cases. But there is nothing stated in Helvering v. Hallock, supra, which would lead me to believe that the remoteness of the possibility of reverter is important in reaching a decision. If a decedent grantor has at the date of his death an interest in the transferred assets, the value of that interest is includible in the gross estate of the decedent. Where death cuts off the possibility of reverter the value of the decedent’s interest in the transferred assets is includible in the gross estate. This it seems to me is plainly the teaching of the Iiallock case.
We must assume in the instant proceeding that the decedent intended to retain an interest in the transferred assets. Death has stopped his mouth from the expression of an intention. That intention must be gained from the trust instrument.
The respondent determined that the corpus of the trust created by the decedent had a value at the date of death of $23,815.46 and a value of $20,961.20 as of the optional valuation date. He further determined that the value of the decedent’s remainder interest for estate tax purposes was $7,438.91. The petitioner does not contend that this valuation is in error, provided the case is ruled by the principle of the Eallock case.
Turner, J., agrees with this dissent.