*264OPINION.
Smith:The appeal of the taxpayer is based on three points: First, that the receipts from the estate of Frederick A. Poth did not constitute income; second, that if the amounts received from the *265estate during the taxable years are considered income they should be reduced by depreciation of the taxpayer’s life estate due to the lapse of time; and, third, deductions should be allowed for obsolescence of the life estate due to the passage of the prohibition amendment.
Under the will of Frederick A. Poth, the residue of his estate was left to trustees, who were to exercise absolute control over the property so long as any of the children of the testator should live, and to pay the income of the estate to these children annually in the proportions specified in the will. In the event of the death of one child leaving issue, such issue would take, by representation, the parent’s '-hare of the income, subject to an allowance for life of one-fourth of such share to the husband or wife, as the case might be, of such deceased child, or, in the event of the death of more than one child, the issue of such deceased children were to take per capita the combined shares of their parents, subject to the allowance for life to the surviving parents.
On August 30, 1915, the taxpayer’s mother died leaving two children, the taxpayer and a sister. Within a few months after the death of the mother their father died, leaving the mother’s share of income from the estate to the daughters.
It is argued in behalf of the taxpayer that the amounts received by the taxpayer from the income of the estate are in the nature of a devise or bequest, and that, under the provisions of section 213 (b) of the Revenue Act of 1918, devises and bequests are excluded from gross income. It is also argued that the amounts in question do not come within the meaning of the word “ income ” as used in the sixteenth amendment, and that the mere fact that, under section 219 (d) of the Revenue Act of 1918, the income of an estate which is distributed to beneficiaries periodically in accordance with the provisions of the will is included in the income of the beneficiary, can not convert the amounts distributable into income if they are not in fact income within the meaning of the sixteenth amendment.
This point is governed by the decision handed down by the United States Supreme Court on April 27,1925, in the case of Irwin v. Gavit, 268 U. S. 161. In that case an individual was entitled to receive a certain proportion of the income of an estate until such time as the testator’s granddaughter, who was 6 years of age at the time of the testator’s death, should reach the age of 21, unless she should die before reaching the age of 21, in which event the individual’s right to receive the income would terminate on the death of the granddaughter. The court held that the income of the estate distributable to the taxpayer under the will was income to the taxpayer within the meaning of the sixteenth amendment, the Revenue Act *266of 1913, and the definition of income as previously laid down by that court in Eisner v. Macomber, 252 U. S. 189. The court said:
The statute in Section II, A, subdivision 1, provides that there shall be levied a tas “ upon the entire net income arising or accruing irom all sources in the preceding calendar year to every citizen of the United States.” If these payments properly may be called income by the common understanding of that word and the statute has failed to hit them it has missed so much of the general purpose that it expresses at the start. Congress intended to use its power to the full extent. Eisner v. Macomber, 252 U. S. 189, 203 [U. S. Tax Cases, 196], By B. the net income is to include “ gains or profits and income derived from any source whatever, including the income from but not the value of property acquired by gift, bequest, devise or descent.” By D. trustees are to make “ return of the net income of the person for whom they act, subject to this tax,” and by E. trustees and others having the control or payment of fixed or determinable gains, &c., of another person, who are required to render a return on behalf of another are “ authorized to withhold enough to pay the normal tax.” The language quoted leaves no doubt in our minds that if a fund were given to trustees for A for life with remainder over, the income received by the trustees and paid over to A would be income of A under the statute. It seems to us hardly less clear that even if there were a specific provision that A should have no interest in the corpus, the payments would be income none the less, within the meaning of the statute and the Constitution, and by popular speech. In the first case it is true that the bequest might be said to be of the corpus for life, in the second it might be said to be of the income. But we think that the provision of the act that exempts bequests assumes the gift of a corpus and contrasts it with the income arising from it, but was not intended to exempt income properly so called simply because of a severance between it and the principal fund. No such conclusion can be drawn from Eisner v. Macomber, 252 U. S. 189, 206, 207 [U. S. Tax Cases, 196]. The money was income in the hands of the trustees and we know of nothing in the law that prevented its being paid and received as income by the donee. ♦
* * * This is a gift from the income of a very large fund, as income. It seems to us immaterial that the same amounts might receive a different color from their source. We are of opinion that quarterly payments, which it was hoped would last for fifteen years, from the income of an estate intended for the plaintiff’s child, must be regarded as income within the meaning of the Constitution and the law. It is said that the tax laws should be construed favorably for the taxpayers. But that is not a reason for creating a doubt or for exaggerating one when it is no greater than we can bring ourselves to feel in this case.
The remaining contentions of the taxpayer that, in the event the Board should decide that the amounts received under the will from the income of the estate were income to the taxpayer, allowance should be made for the depreciation of the taxpayer’s life estate due to the lapse of time and for obsolescence of such life estate due to the passage of the prohibition amendment, will be considered together, since the deductions claimed on account of depreciation and obsolescence are governed by the same provisions of law. Section 214 of the Revenue Act of 1918 reads in part as follows:
*267(a) That in computing net income there shall be allowed as deductions:
⅝ ⅜ ■* * * * *
(8) A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence ; * ⅞ *
The taxpayer does not contend that she is entitled to deductions on account of the property belonging to the estate or on account of obsolescence of the brewery business because of the advent of prohibition. She does claim, however, that she has a life estate of determinable value and is entitled to an allowance for the exhaustion of this estate due to lapse of time, and, further, that prohibition has seriously impaired the value of the life estate for which allowance should be made by way of obsolescence. From the language just quoted, it is clear that there is no basis for such deductions as contended for by the taxpayer. Deductions for exhaustion, wear and tear, and obsolescence are allowable to an individual only in respect of property used in trade or business, and, regardless of whether or not the taxpayer has a life estate of the value contended for, and regardless of whether or not her share of income from the estate was.materially reduced by the advent of prohibition, it can not be said, under the most liberal construction, that the taxpayer’s right to share in the income of the estate was property used in the trade or business.