dissenting: The prevailing opinion concludes that the decedent’s continuous occupancy of the property from the time of transfer until the date of his death “is insufficient to indicate any prior agreement or prearrangement for retention of use by the transferor,” and it rejects the contention that there was any “understanding or implied agreement between decedent and his wife that decedent would continue to occupy the residence.”
It must be remembered, however, that the burden of proof is upon petitioner, not upon the respondent. To conclude, in spite of that burden, that there was no such understanding or implied agreement seems to me to fly in the face of all human experience. And the error is compounded 'by assuming that the conclusion is compelled as a matter of law. I know of no rule of law requiring such judicial credulity.
The error of the majority is underscored by the fact that the transfer herein was obviously a substitute for a testamentary disposition with actual retention of “possession or enjoyment” of the property until the decedent’s death, thus bringing the case within the very letter and spirit of the statute. How many times must a statute be amended to insure that the legislative purpose, apparent enough on the first enactment, will be given effect by the courts %
Tietjens, /., agrees with this dissent.