dissenting: I dissent from the conclusion that the respondent did not err in including the dividends in question in the petitioners’ income, and from the reasoning upon which such conclusion is based.
The order of the Probate Court of Lucas County, Ohio-, entered April 9, 1926, and referred to in the findings of fact was determinative of the legal title to the stocks in question. It decreed, among other things, that the distribution of these stocks in 1920 was “ without authority, illegal and of no effect.” It decreed also that the recipients of the stocks, namely, the petitioners herein, should account to the executors of the estate of Edward Ford, deceased, for the principal and the income of the said stocks received by them and were to be charged with interest on the dividends from the time of the illegal and void distribution until December 31, 1922. The order further provided that the stocks might be redistributed by the executors as of December 31, 1922. It contained, however, no provision or direction with respect to the further distribution of the dividends for 1921 and 1922.
The order of the probate court was complied with by entries in the books of the estate as shown in the findings of fact.
In the case of Ford v. Nauts, 25 Fed. (2d) 1015, incorporated by reference in the statement of facts, the United States District Judge made certain conclusions of law which were admitted as evidence in the present proceedings. Among these conclusions, he stated that “ the final order and decree of the Probate Court of Lucas County on April 9, 1926, in the matter of the Ford Estate is determinative of the ownership and control of the stocks of the J. B. Ford Company, the Edward Ford Plate Glass Company and the Michigan Alkali Company and the income thereon during the year 1921.” In my opinion the said order was also determinative of the ownership and control of the income from said stocks during 1922. It determined that during the whole of that year the estate of Edward Ford was the rightful owner of such income. This order and decree of the Probate Court of Lucas County determining the ownership of property was a judgment in rem and is binding on the respondent and *1153this Board alike. The probate court which made the order was a court of competent jurisdiction, was in the fullest sense a court of record, whose judgments and decrees import absolute verity, and was competent to decide its own jurisdiction and to exercise it to final judgment without setting forth the facts and evidence on which it was rendered. (Sections 7 and 8 of the Constitution of Ohio; section 10492 of the General Code of the State of Ohio; Crawford v. Zeigler, 84 Ohio St. 224; 95 N. E. 743; Wilberding v. Miller, 90 Ohio St. 28; 106 N. E. 665.) The Probate Court of Lucas County therefore had jurisdiction to determine finally as against all the world the ownership of the property in question (Tilt v. Kelsey, 207 U. S. 43, 56), and its judgment in respect thereto is binding in state courts, courts of the United States, and upon this Board. Simmons v. Saul, 138 U. S. 439; Lytle v. Lansing, 147 U. S. 59; Doran v. Kennedy, 237 U. S. 362; Marshall Field, 15 B. T. A. 718; Estate of Henry Mayer, 16 B. T. A. 1164.
While the said order of the Probate Court of Lucas County provided that the stocks in question might be redistributed as of December 31, 1922, it made no such provision concerning the dividends on such stocks for the year 1922. Redistribution of the stocks to the beneficiaries as of December 31, 1922, or as of a later date, would not carry with it, as a matter of law, legal title to dividends paid prior to the date of such redistribution of the stock. There being no contrary provision in the said order of the probate court, the legal title to the said dividends remained in the executors of the estate of Edward Ford after December 31, 1922. Nor were the beneficiaries of the estate entitled to the amount of such dividends until the court made an order redistributing them, or until the executors lawfully made an entry in their books crediting the beneficiaries with such redistribution.
The final accounting of the executors of the estate was dated December 15, 1928. The proof shows that the executors then charged themselves with a balance on hand of more than $2,000,000. They charged themselves with the receipt of the principal value of the stocks in question pursuant to the order of the probate court and credited themselves with a redistribution to the beneficiaries of such principal value of the stocks. They charged themselves with the receipt of the amount of the said dividends and interest thereon pursuant to the said order of the probate court, but did not credit themselves with a redistribution to the beneficiaries of the amount of such dividends. If follows that at the date of the final accounting the amount of the said dividends was included in the balance on hand with which the executors charged themselves. Therefore, giving full force to the order of the probate court, as we are bound to do, *1154the amount of said dividends had not been paid to any legatee, heir or beneficiary during 1922. They were not credited to any beneficiary during that year on the books of the estate and were therefore not distributable during said year.
It is true, of course, that the amount of the said dividends actually remained in the possession of the petitioners. But I concur in the conclusion of law made by the District Judge in the case of Ford v. Nauts, supra, to the effect that the amount of the said dividends was received by the beneficiaries for the executors of the estate of Edward Ford. This situation could not be lawfully changed except by decree of the court or by action of the executors by which they lawfully redistributed the amount of the dividends to the beneficiaries or credited such amount to them in the books of the estate.
The probate court approved the executors’ account dated September 15, 1928. By the action of the executors and by the approval of the probate court thereof, shown in the findings of fact, the executors became charged with liability of tax on the amount of the said dividends.
For the foregoing reasons, I am of the opinion that the amount of the dividends in question was not taxable to the petitioners under any provisions of section 219 of the Revenue Act of 1921, and that the respondent erred in including the amounts of said dividends in the gross income of the petitioners, respectively, for the year 1922.