dissenting: I must dissent from the decision of the Board on the second point.
In each of the original trust deeds there was incorporated a paragraph “ Eleventh ” set out in full in the findings of fact. By its *345terms a power to modify, amend or revoke the trust was reserved “ provided however that should the said party of the first part modify, alter or revoke, in whole or in part, this indenture, as provided herein, he shall not designate himself as beneficiary.” Subsequently, decedent executed with due formality certain “ second supplements ” which read as follows:
I reaffirm article eleven of. the original Deed of Trust * * *, and declare that such rights of modification, alteration or revocation as are reserved by me will effect, if made, a beneficiary other than myself, that while I have reserved the'right to change the benefieiary it will be some one other than myself, and that I have no interest now or in the future in the corpus of the trust or the income therefrom.
Yet later supplements were as follows:
I reaffirm Article Eleven of the original Deed of Trust, entered into with the Girard Trust Co., Trustee and myself on July 16, 1923; and further declare that if I should avail myself of the right to revoke this Trust and the Supplements thereto, from the present benefieiary, Mrs. Eleanor C. Young, I shall designate Mrs. Alice H. Cook, Mr. Horace T. Cook and Master John Hutchinson Cook, as beneficiaries, who shall share in income in equal shares and the principal of the Trust will be added to the Trusts already created for the said Mrs. Alice H. Cook, Mr. Horace T. Cook and Master John Hutchinson Cook.
I again state that I have no interest now or in the future in the corpus of the trust or the income therefrom, and that no part of the principal or the income therefrom is to be or will be used to pay premiums of life insurance policies on my life.
In Reinecke v. Northern Trust Co., 278 U. S. 339, Mr. Justice Stone observed:
Nor did the reserved powers of management of the trusts save to decedent any control over the economic benefits or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, but the transfer would not for that reason have been incomplete. The shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax.
By express declaration decedent at the time he created the trusts foreclosed himself from any future participation in the corpus or fruits thereof. So far as he was concerned he divested himself irrevocably of all economic or beneficial interest in either. There remained no power or control “ for his own benefit,” and at his death no economic benefit in the trust property could pass from him to the living.
*346Nor is the retention by decedent of the limited power by which the enjoyment of the fruits of the trust could be shifted from one named beneficiary to another, also named, inconsistent with the conclusion that decedent had effectively and irrevocably parted with all beneficial interest in the property. No advantage or benefit could accrue to him from such action. By his covenant he has expressly precluded such a possibility.
In the case of Brady v. Ham, 45 Fed. (2d) 454, the Circuit Court of Appeals for the First Circuit had before it a situation quite parallel to the present proceeding. The case arose under the same taxing act (1924). The question’had its origin in a provision of a trust deed, which reads as follows:
Said Elizabeth S. Haynes shall have full power to make any additions to the trust property and to change and alter any or all of the trust herein set forth, to name an^ beneficiaries other than those above named except herself, whether by way of addition or substitution, and to appoint another trustee or other trustees at any time either by way of addition or substitution for the trustee or trustees at any time acting. Any such change, alteration or appointment shall be made by her deed and shall take effect immediately upon the delivery thereof to any one not herself who shall at the time be acting as a trustee hereunder, or if she be the sole trustee upon her execution thereof. (Italics ours.)
Addressing itself to this quoted provision, the court said:
The decedent, Elizabeth S. Haynes, by her declaration of trust expressly deprived herself of the enjoyment of all economic benefits in the trust estate. While she might control the final disposition of it so far as the beneficiaries were concerned, she could not restore to herself any beneficial enjoyment of it. She reserved no power of revocation as in the first “ two trusts ” in the Reinecke case. Bath Sav. Institution v. Hathorn, 88 Me. 122; Keys v. Garleton, 141 Mass. 45, 49; Thurston, Pet’r. 154 Mass. 596; Sands v. Old Colony Trust Co. 195 Mass. 575, 577. So far as any economic benefits of the trust estate were concerned, they passed to the trustees at- the time of the execution of the declaration of trust. The enjoyment of them may not have been definitely settled on the beneficiaries until her death, and the beneficiaries may have been subject to a succession tax, but the right of enjoyment of any economic benefits thereof irrevocably passed from the decedent in 1911. To hold that such property was subject to a transfer tax would amount to what the Supreme Court had termed in the above-cited cases as an arbitrary and capricious exercise of legislative power.
This test established by the Supreme Court has been since followed in the Circuit Court of Appeals in the Third Circuit in McCaughn v. Carnill, 43 Fed. (2d) 69, and in the District Court for the District of Massachusetts in Erskine et al. v. White, decided October. 1, 1930.
In the circumstances of the present case it is only by a strained or highly artificial construction that the corpus of the trusts can be included in the gross estate of decedent.