dissenting: It seems to me that the majority opinion on the first issue disregards the fact that the estate tax falls upon the shifting of an economic interest from the dead to the living. Shukert v. Allen, 273 U. S. 545; Reinecke v. Northern Trust Co., 278 U. S. 339; May v. Heiner, 281 U. S. 238.
Section 811 (c) deals with property technically transferred by means of inter vivos gift, the actual enjoyment or possession of which is made to depend upon the death of the grantor. The grantor’s death, completing the gift previously made, is the event which calls the statute into play. The crux of the problem is pointed out by the Supreme Court in Helvering v. Hallock, 309 U. S. 106, where, in commenting upon Klein v. United States, 283 U. S. 231, the Court said: “By bringing into the gross estate at his death that which the settlor gave contingently upon it, this Court fastened on the vital factor.” The question presented in the Hdllock case and its companion cases is made manifest in the following statement: “All involve dispositions of property by way of trust in which the settlement provides for return or reversion of the corpus to the donor upon a contingency terminable at his death.”
In the present case the transfer sought to be subjected to tax bore no reference to the death of the decedent. His death could have no effect whatsoever upon the possession or enjoyment of the trust property, neither creating, completing, enlarging, or diminishing the estate or interest of any taker under the trust instrument. His death was the “generating source” of no property rights or interests. No interest, right, or benefit passed from him to others upon his death, or was terminable at his death. All had been established by the inter vivos transfer and remained completely unaffected upon his death. It is difficult, therefore, to understand the basis for including in decedent’s gross estate the value of property the transfer of which was completed during his lifetime, not in contemplation of death and in no way related to his death.
It is true that on a remote contingency, namely, that both grandsons die prior to distribution to them of the corpus, without leaving widows, or children, and without exercising the testamentary power of appointment, the property might revert to the donor, if living, and otherwise to his estate. However, as stated in Lloyd v. Commissioner, 141 Fed. (2d) 758: “If the contingent reversionary interest should ever vest w* the settlor in his lifetime (or after his death for that matter) it woid«* vest only because of the death of the life beneficiaries under the prescribed conditions and not because of or with relation to the death of the settlor.” This case is indistinguishable in principle from Lloyd v. Commissioner, supra; Estate of Benjamin L. Allen, 3 T. C. 844; and Frances Biddle Trust, 3 T. C. 832. Upon such authority and upon analysis of the plain terms of the trust instrument, I am of the opinion that decedent gave nothing contingently upon his death; that nothing passed from him to others at his death; and that, therefore, the transfers were not intended to take effect in possession or enjoyment at or after his death.