dissenting: I feel constrained to dissent from so much of the opinion of the Board as holds that the property embraced in the trusts mentioned should be included in the gross estate of the decedent.
The law here being applied provides for an estate tax on transfers of the net property of a decedent at the time of his death. (Section 301 of the Revenue Act of 1926.) The tax is not a succession tax, payable by the beneficiary, but a transfer tax payable at the hands of the personal representative of the deceased. (Sections 305 (a) and 314 (b).) The deceased did not own the property here sought *1027to be included in Ms gross estate at the time of his death. He had conveyed it away by trust deeds without power to revest it in himself or in his estate.
In neither Trust No. 1, Trust No. 2, nor Trust No. 3 did the decedent reserve the power to revolee the trusts. The reservations were merely of the power to modify or alter; not to revolee. The power so reserved was limited to modifications or alterations not in favor of himself or his estate, but were to apply only so far as the interests of third parties were concerned.
The decedent, in the instruments of November 27, 1926, reciting revocation of the trusts, did not purport to act by virtue of. any other right or power except that contained in paragraph “ Tenth ” set forth in the findings of fact.' A new trust was not created; the funds did not change hands; other grandchildren, subsequently born, were merely provided for.
Under the New York law, which is here applicable, the donor of a trust alone can not revoke the trust unless the power of revocation is expressly reserved. Cazzani v. Title Guarantee & Trust Co., 175 App. Div. 369; affd., 220 N. Y. 683; 116 N. E. 1040; Title Guarantee & Trust Co. v. Haven, 214 N. Y. 468; 108 N. E. 819; In re Carnegie’s Estate, 203 App. Div. 91; 196 N. Y. S. 502; affd., 236 N. Y. 517; 142 N. E. 266.
Where no power of revocation is reserved, attempts by the donor to revoke are void. Garner v. Germania Life Insurance Co., 110 N. Y. 266; 18 N. E. 130; Roberts v. Taylor, 300 Fed. 257; McPherson v. Rollins, 107 N. Y. 316; 14 N. E. 411; Dickey v. Goldsmith, 60 Misc. 258, 111 N. Y. S. 1025.
The trusts could not be revoked by the donor, one of the beneficiaries being a minor. Whittemore v. Equitable Trust Co., 250 N. Y. 298, 165 N. E. 454.
At the time of the execution of the trusts in question, all economic benefits in the trust funds passed from the decedent, without any right or power reserved to revoke such trusts or to repossess any part or interest in the funds.
In cases decided by the United States Supreme Court and relied on by the respondent, where property has been included in the gross estate for Federal estate-tax' purposes, the decedent had a legal right, direct or contingent, under which he, to the moment of his death, might acquire some economic benefits in the property concerned. In Tyler v. United States, 281 U. S. 497, the decedent shared with his wife the ownership and enjoyment of the property during his life and if the decedent had survived his spouse, he would have acquired the whole property. At his death there was a shifting of economic benefits from him to his wife.
*1028In the case of Chase National Bank v. United States, 278 U. S. 327, the decedent, by virtue of the power to change beneficiaries, could make the insurance policies payable to his estate for estate purposes, secure the cash surrender value of the policies, or borrow against the policies.
In Reinecke v. Northern Trust Co., 278 U. S. 339, the donor could revest in himself the principal of the trust.
The Supreme Court has refused to include in decedent’s gross estate property no interest in which passed from the decedent at death. May v. Reiner, 281 U. S. 238; Reinecke v. Northern Trust Co., supra; and Nichols v. Coolidge, 274 U. S. 531.
Upon the hearing and in respondent’s brief, only slight contention was or is made that the trust funds should be included in the gross estate by reason of section 302 (c) of the statute. Petitioner directly challenged the constitutionality of this section under the decision of the Supreme Court in Schlesinger v. Wisconsin, 270 U. S. 230. The evidence shows clearly that the instruments of November 27, 1926, were not made in contemplation of death. Respondent placed his principal reliance on section 302 (d), which provides that there shall be included in the gross estate of every decedent at the time of his death all property: “ To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revolee * *
In the trust deeds involved here, power to amend and alter was reserved to the donor — the decedent; but this was not a general power, but a limited power as set out in the facts recited in the main opinion. Under the express limitation of the power, the decedent could not exercise it by deed or will, or otherwise, in favor of himself or his estate. The possessor of a general power of appointment has authority to dispose of the property at his death by will and his position is not unlike that of an owner, for he can make himself during life and his estate thereafter the beneficiary of the trust. An unlimited power to amend, alter or revoke a deed of trust is equivalent to a general power of disposition and a general power of disposition is the practical equivalent of a fee. Bullen v. Wisconsin, 240 U. S. 625; Leser v. Burnet, 46 Fed. (2d) 756; Sugden, Powers, 8th ed., 396.
The failure to exercise ■ this general power of appointment, in effect, results in a transfer from the donee’s own estate (to which he has the power to give it) and a transfer to the estate of others who take because of his death and the failure to exercise the power during *1029life in his own favor or in the favor of others. Property passing under such general power of appointment may be subject in the hands of the donee of the power to the claims of his creditors (United States v. Fields, 255 U. S. 257); or to the claims of trustees in bankruptcy (Cohen v. Samuels, 245 U. S. 50); and may be included in the estate of the decedent for estate-tax purposes (Chase National Bank v. United States, supra). But under a special, naked or limited power of appointment, such as is here under consideration, the decedent could not have sold or assigned the power (Jones v. Clifton, 101 U. S. 225). A failure to exercise such limited power can not result in any transfer of anything from the decedent, for there is no beneficial interest or estate in him to be transferred; his creditors have no claim upon his power of appointment nor can they levy execution or distraint against him while he lives, on such account, nor against his estate when he is dead; if he should become a bankrupt, no trustee in bankruptcy would have any claim against the trust funds; his interest in the trust fund being only such limited power of appointment, his estate possesses nothing of value in it to be included in the gross estate. Certainly, “ to the extent of his interest therein ” would not include the whole value of the property. Reinecke v. Northern Trust Co., supra; Nichols v. Coolidge, supra; May v. Heiner, supra. The Circuit Court of Appeals for the First Circuit, in the case of Brady v. Ham, 45 Fed. (2d) 454, had under consideration a trust identical with the trusts here involved, except the power to change and alter the trust and to name any other beneficiaries was limited in that case to beneficiaries other than the maker of the trust; whereas in the case before us the limitation of the power applies not only to the maker of the trusts, but his estate also. In the Brady v. Ham case, the court, by unanimous opinion, said that the decedent had expressly deprived herself of all economic benefits in the trust estate; that those benefits passed at the time of the execution of the declaration of trust, and such estate was not includable in the gross estate of the decedent, and that “ To hold that such property was subject to a transfer tax would amount to what the Supreme Court had termed * ⅜ * an arbitrary and capricious exercise of legislative power.”
Moreover, it is suggested that the part of section 302 (d) added by the Revenue Acts of 1924 and 1926, and which is italicized in the above quotation, is ambiguous and susceptible of different interpretations and meanings. Do the words “ any change ” mean (1) a change however slight, or (2) a change without limitation? Webster defines the word “ any ” to mean: “ Unlimited, and indefinite number, quantity or degree,” as well as “ some.” Does the statute mean power to make some slight change, or unlimited power to make *1030any change? One of the trusts herein provides that when Mrs. Davisson reaches the age of 30 years, the principal fund shall be paid to her. By way of illustration, if the sole power reserved had been to change the 30 years to 40 years, would that sole reserved power subject the trust funds to be included in the gross estate of the decedent at the time of his death ? If the power to postpone to the beneficiary the enjoyment of the principal fund for ten years is power sufficient to make such change in the trust as will require the fund to be included in the decedent’s gross estate, would not the power to postpone such enjoyment five years or one year or one month have the same effect ? If “ any change ” means any slight change, even a power to cause a day’s postponement, under the construction contended for, would seem to comply with the provisions of the statute. Such construction, it appears to me, would contain some of the elements of capriciousness condemned in several adjudicated cases. I prefer to think, as was held by the Circuit Court of Appeals for the First Circuit (White v. Erskine, 47 Fed. (2d) 1014), that Congress did not intend by section 302 (d), to create a new form of excise tax, that is, a tax on the power in the grantor to alter or amend a trust executed by him when the power so reserved is limited as in this case. Cf. Frew v. Bowers, 12 Fed. (2d) 625. To hold under the statute that W. H. Porter’s estate should be taxed oii the value of the property theretofore conveyed in trust, irrevocably, by him, and not owned by him, in whole or in part, and of which no beneficial interest remained in him, at the time of his death, is to raise a serious doubt as to the constitutionality of the Act of Congress. To hold that by the power to make “ any change ” in the trust, Congress in the statute meant an unlimited power, to make “ any change,” or a power to make a change, such as would leave with the settlor power to revest the property in himself, is to adopt a more reasonable construction and to avoid the doubt as to the constitutionality of the Act. “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” Panama R. R. Co. v. Johnson, 264 U. S. 375.
Smith agrees with this dissent.