dissenting: At common law a remainder in real estate could not be created without a particular estate to support it. A *995freehold could not pass without livery of seisin, which must operate immediately or not at all. But it was otherwise in reference to personalty for, as Mr. Blackstone says, “ it was considered as a mere contract to take effect in the future.” The case under consideration is more nearly related to that tenure under the Statute of Uses called fidei commissum, which was usually created by will and was the disposal of property to one in confidence that he should convey or dispose of its profits at the will of another — the dim beginnings of our law of uses and trusts.
These tenets of the ancient law of property, set forth with much commendable erudition in the majority opinion, seem, however, unnecessary and out of place in a tax case under taxing statutes such as the heart of Blackstone or Coke or Littleton never conceived. Title to the property from which the income sought to be taxed in this case was derived is in no wise in dispute; and the will under which the property was 'bequeathed was never contested and under it there was no suggestion of lapsed legacies either in the pleadings or in the evidence on the trial. The solution of the main question here involved does not seem to be made less difficult by the addition of these burdens.
And what is this main question here involved? It is this, when did this petitioner acquire under his father’s will, the securities which he sold in 1924, and 1925? The statute, section 204 (a) (5) of the Revenue Act of 1924, points the pertinency of this inquiry:
Sec. 20-1. (a) The basis ior determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property; except that—
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(5) If the property was acquired by bequest, devise, or inheritance, the basis shall be the fair market value of such property at the time of such acquisition. * * * (italics supplied.)
To acquire property is not synonymous with to vest title to property, although closely allied to it. In a taxing statute obviously something more than a vested title is requisite. A title which would support an action at law for possession falls short of acquired property. One who purchases from the legal owner the legal title to an automobile which has been stolen has a good vested title to it, but must walk until the possession of the automobile is recovered. And titles do not always vest completely at once or by one act. Title when complete may have relation back to something done in the beginning which perfects it ab initio and makes secure rights and reduces to possession that which previously was a bare right only without possession. (Brewster v. Gage, 280 U. S. 327.) Possession, at least constructively, is necessary to full property rights in personalty. (Bouvier’s Law Dictionary, subject, Possession.)
*996The steps in the acquisition of the securities sold by the petitioner in 1924 and 1925 may be thus enumerated: First, his father made a will and then died; then the will was probated and put to record and trustees under it were appointed; then the petitioner had an expectancy or inchoate right to future acquisition, but if he had acquired anything up to that time it did not include all of that which he afterwards sold. (Tyler v. United States, 281 U. S. 497.) It could not then be known what he would acquire in the end, for the trustees could sell and reinvest; fire, flood and earthquake might destroy it all before his mother should pass away; and even then the trustees could sell and convert into money any securities or other property of the residuary estate not previously disposed of, leaving the ultimate possession and property under the vested right still precarious to the petitioner. It was only when his mother died and the property was divided by the trustees into five parts and one part handed over to the petitioner that he, or any one, could know what he acquired. Suppose his title did then revert to the original filing of the will ? Suppose he could at any time have sold his expectancy even before his mother’s death? He did not sell his expectancy and we are not concerned with what he might have done. Our concern is with stern facts and realities, and verities are not coerced by speculative possibilities. (Weiss v. Stearn, 265 U. S. 242.) Surely, before the death of his mother he could not have sold the fee simple or absolute title to the securities which he did sell in 1924 and 1925, for he had not then acquired that title.
Upon a consideration of the whole case, and for the reasons pointed out, I am led to conclude that the correct basis for establishing gain to the petitioner in the transaction under review is the value of the securities he sold at the time he acquired them, to wit, at the time of the death of his mother.
Teussell and Vai\t FossaN agree with this dissent.