dissenting and concurring: With regard to the Potato Company stock, I am convinced that there was no intention on the part of Euclide to give to Marie in praesenti “the title, dominion, and control of the subject matter of the gift” as a joint tenant. See Adolph Weil, 31 B.T.A. 899, 906, affd. 82 F. 2d 561. Considering the nature of the alleged gift and Euclide’s status as Marie’s husband, neither the failure of Euclide to make delivery of the stock to Marie nor his retention of some control over it would necessarily be fatal to the validity of the gift, if I could be satisfied from other circumstances that there was in reality an intent on the part of the donor to make a gift in praesenti. Cf. Naomi Towle Bucholz, 13 T.C. 201; Hoxie v. Page, 23 F. Supp. 905, affd. 104 F. 2d 918; Tracy v. Commissioner, 70 F. 2d 93. However, in this case we have un-contradicted testimony to the effect that Euclide did not intend to give to petitioner any such present joint interest in the Potato Company stock that she might enjoy and exercise jointly with him the incidents of ownership therein. This testimony is substantiated by these facts: This stock was in a small closely held corporation informally managed and controlled by Euclide and his brother; petitioner was never informed by Euclide that any interest in this stock had been given to her; the stock certificate, although issued in the joint names of Euclide and decedent, was kept in Euclide’s office safe (to which petitioner had no access) rather than in the joint safe-deposit box of decedent and petitioner; decedent, as a practical matter, had the power to have this certificate canceled during his lifetime and another issued in his name by reason of his complete dominance over petitioner in all business matters; and decedent treated this stock as his own until his death. I think it is clear from the entire record that Euclide, by having a certificate for this stock issued in the joint names of himself and his wife, did not intend to give to her any present joint interest therein but merely intended to facilitate thereby her acquisition of the stock at the time of his death. Thus I would conclude that the issuance of this certificate in the joint names of Euclide and petitioner constituted in reality an attempt on Eu-clide’s part to make a testamentary disposition thereof which would be invalid in Maine as contrary to the Statute of Wills. Hill v. Hill, 144 Maine 224, 67 A. 2d 533; Barstow v. Tetlow, 115 Maine 96, 97 Atl. 829; Appeal of Garland, 126 Maine 84, 136 Atl. 459; Rose v. Osborne, 133 Maine 497, 180 Atl. 315; Reid v. Cromwell, 134 Maine 186, 183 Atl. 758. Accordingly, in my opinion, the Potato Company stock passed to petitioner under the decedent’s will and her basis is its fair market value as of the date of decedent’s death.
The fact that the certificate was issued in the joint names of Euclide and petitioner is not a controlling factor. See Sewell v. Commissioner, 151 F. 2d 765, affirming a Memorandum Opinion of this Court.
With regard to the Maine statute relied upon by respondent it is my opinion that its purpose was merely to effect a change from the common law of Maine as stated in Strout v. Burgess, 144 Maine 263, 68 A. 2d 241 (which did not involve the question of a gift), so as to render it unnecessary in the future to use conveyances to and from a “straw man” in order to effect a valid joint tenancy in the original owner and another. In any event it should not preclude us from inquiring and determining whether in reality and for Federal tax purposes a bona fide gift in praesenti had been made. See Lannan v. Kelm, 221 F. 2d 725, 732; Sewell v. United, States, 73 F. Supp. 957.
Therefore, as to the issue involving the Potato Company stock, I respectfully dissent from the majority opinion herein.
As to the issue involving the margin account, I concur in the result reached by the majority but on different reasoning.
While the primary purpose of the decedent in arranging for this margin account to be placed in the joint names of himself and petitioner was to facilitate its passage to her at his death, this transaction differs materially from his purported gift of the Potato Company stock to himself and his wife as joint tenants. Here the original margin account maintained in his own name was terminated and a new margin account was opened pursuant to a margin account agreement with the brokers, signed by both decedent and petitioner, which provided that each should have full power over the account and further provided that “[i]n the event of the death of either * * *, the entire interest in the joint account shall be vested in the survivor.” Thus petitioner’s interest in the margin account arose from a completed contract executed by and between the brokers, decedent, and petitioner.
The validity of this transaction is governed by the law of Massachusetts where the brokerage account was maintained. See Strout v. Burgess, supra. In order to prevail on this issue petitioner must show that under the law of Massachusetts the creation of the margin account in joint tenany was in effect a gift by decedent to take effect only at his death and thus constituted an invalid testamentary disposition so that the assets of the account must be considered as passing to petitioner by his will rather than by the terms of the margin account agreement.
Petitioner has not shown that under the law of Massachusetts the margin account agreement constituted an invalid testamentary disposition of the assets of the account. To the contrary, it would seem to be valid and capable of passing the margin account assets to petitioner by its provisions. See Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N.E. 371; Perry v. Leveroni, 252 Mass. 390, 147 N.E. 826; and Goldston v. Randolph, 293 Mass. 253, 199 N.E. 896, 103 A.L.R. 1117. While these cases involve savings accounts with banks the principles stated therein would seem to be applicable to a case involving a margin account.
I would conclude that petitioner has failed to prove that the securities contained in the margin account passed to her by testamentary bequest rather than by an inter vivos transaction, and has therefore failed to prove that her basis as to these securities was other than that determined by respondent.