OPINION.
Ahundell :This is a proceeding for the redetermination of a deficiency m estate tax in the amount of $113,201.18. Seven assignments of error were set forth in the petition and amendments thereto, upon which issue was joined, but all of these issues have been settled by the parties, except one. The issues so settled will be given effect in the redetermination of the deficiency under Rule 50, in accordance with the agreement of the parties filed at the hearing.
The parties also stipulated certain facts, in addition to which petitioners offered the testimony of two witnesses and certain documentary evidence. The stipulation in full is here adopted as a part of our findings of fact, and so much thereof as is deemed pertinent, as well as other facts established by proof, will be set forth in connection with our discussion of the issue.
The sole issue submitted for decision is whether or not respondent erred in including in the gross estate of the decedent, at a valuation of $766,000, certain real estate situated in the town of Greenwich, Connecticut, known as “ Milbank.”
The decedent, Elizabeth Milbank Ashforth, died testate on March 8,1930, and the petitioners herein are the duly appointed and qualified executors and ancillary executors of the last will and testament of the decedent.
At the time of her death the decedent was about 25 years'of age, and had been in excellent health prior to her last illness, which was of only three or four weeks duration. She was married in 1925 at the age of 20, and had two children. Thereafter, in 1928, she consulted her lawyer in reference to making a gift to her husband. She had considerable income from certain trust funds, while her husband’s income was small. This situation required her to pay most of the bills, which was humiliating for her husband, and she wanted him to have an independent income. She had no income-producing property in her own right except about $100,000 in stocks and bonds. She did not desire to give these securities to her husband, because they were the only assets she had upon which she could readily realize cash if occasion arose. In view of these facts, she was advised by her lawyer that the only thing she could give her husband *1308that would create an independent income for him was a mortgage on the real estate in Greenwich, and she expressed her willingness to do this.
The effect of the proposed transaction was fully explained to the decedent by her attorney, who told her that she was making a gift of property of the value of $700,000, which she could not recover without paying the full sum of $700,000 for it, and that she was committing herself to the payment of interest in the annual sum of $42,000. Decedent stated that she understood all this, and that it was satisfactory to her.
Decedent then signed a demand note for $700,000, bearing interest at 6 percent per annum and executed a mortgage deed in the same amount on the real estate, and delivered these instruments to her husband at his office in the presence of her attorney on April 28, 1928. A few days later the attorney sent the mortgage to Greenwich, Connecticut, to be recorded, but the instrument was thereafter returned to him and not recorded at that time for the reason that the amount of the mortgage was in excess of the assessed value of the property and recording would have had the immediate result of raising the assessment. The mortgage was recorded on April 8, 1931, after decedent’s death.
Decedent’s husband was also informed of the effect of the transaction, and he accepted the note and mortgage and placed them in a safe-deposit box to which his wife had no access during her lifetime. Decedent regularly paid to her husband the interest specified in the note and mortgage, from the date of delivery thereof to the date of her death.
In the preparation of her will decedent took into consideration the fact that she had already given her husband the mortgage for $700,-000, and she made him the residuary legatee in her will, conditioned upon his release of the mortgage and note. She stated definitely to her lawyer, who prepared the will, that she did not want her husband to have both the mortgage and the residuary estate. After the death of decedent her husband elected to take the residuary estate under the will, and he thereupon canceled the note and executed and delivered to the trustee under the will a quitclaim deed to the property. There was no agreement or understanding between decedent and her husband that the mortgage would be canceled at any time at her request, nor was there any understanding that the husband would cancel it after her death.
The fair market value of the “ Milbank ” property was $766,000 on March 8, 1930.
No monetary consideration for the note and mortgage deed passed from decedent’s husband to the decedent during her lifetime.
*1309The executors of the decedent’s estate, in the estate tax return filed, listed as an asset the “ Milbank ” property at a value of $766,-000, and claimed a deduction for the unpaid note and mortgage in the amount of $707,933.33. Presumably $7,933.33 of this amount represented accrued interest. The respondent disallowed the entire amount of the deduction so claimed.
The provisions of the Revenue Act of 1926, pertinent here, are as follows:
Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated—
(a) To the extent of the interest therein of the decedent at the time of his death;
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Sec. 303. For the purpose of the tax the value of the net estate shall be determined—
(a) In the case of a resident, by deducting from the value of the gross estate—
(1) Such amounts for funeral expenses, administration expenses, claims against the estate, unpaid mortgages upon, or any indebtedness in respect to property, * * * to the extent that such claims, mortgages, or indebtedness were incurred or contracted bona fide and for an adequate and full consideration in money or money’s worth, * * *
Petitioners do not now claim to be entitled to deduct from the gross estate the face amount of the mortgage under section 303 (a)(1). They claim that under section 302 (a) the extent of the interest of the decedent in the “ Milbank ” property was not more than the value of her equity of redemption, $66,000, and no more than that sum should be included in the gross estate.
It is contended by petitioners that the legal effect of a mortgage in Connecticut is to vest legal title to the land in the mortgagee, and to leave the mortgagor with no legal title therein until performance of the condition of the mortgage. There are cases containing language which supports that view, one of which, McKelvey v. Creevey, 72 Conn. 464; 45 Atl. 4, cited by petitioners, reads in part:
The mortgagee is the owner of the land, while the mortgagor has no legal estate therein until he performs the condition. If he fails to do so, all his-right to the land is gone.
But the same opinion continues as follows:
In substance and in fact, however, and except for a very limited purpose, a mortgage is regarded as mere security for the performance of the duty described in the mortgage deed; and the mortgagor is for most purposes regarded as the sole owner of the land, “ as well after forfeiture as before execution of the deed, and the mortgagee has rather a power than an interest, the use of which is strictly limited to the collection of the debt or enforcement of the duty which the mortgage was intended to secure.” * * * In this view of the matter, the “ equity of redemption ” is regarded as the land, and its owner as the owner of the land, for most purposes; while the “ estate in fee ” of the mortgagee is, except for a limited xmrpose, regarded as personal estate *1310and mere security. [Citing authorities.] In accordance with this view it has been held, in the following cases, that the estate of the mortgagor is subject to dower; descends to heirs; may be attached and set off on execution; may, as real estate, confer rights of settlement; is devisable and taxable as real estate; and is based upon a title sufficient to maintain ejectment, — while to the estate of the mortgagee none of these incidents attach, save the right to maintain ejectment. [Citing authorities.] As between mortgagor and mortgagee, however, it is the law of this state that the latter is regarded as having the legal title to the land * * * but he is so regarded, as appears from the eases cited, only to a limited extent and for a limited purpose. He is regarded as having the legal title, and therefore is legal owner, mainly for the purpose of obtaining, by ejectment or otherwise, the possession of the land, and holding it, in order to mate his security available in payment of his debt. * * * He has title and ownership enough to mate his security available, but for substantially all other purposes he is not regarded as owner; but the mortgagor is so regarded, — always subject, of course, to the mortgage. * * * The real interest of the mortgagee in the land is measured by the amount of his debt, and not by his deed.
See also Downing v. Sullivan, 64 Conn. 1; 29 Atl. 130; Ensign v. Batterson, 68 Conn. 298; 36 Atl. 51; Cion v. Schupack, 102 Conn. 644; 129 Atl. 854.
Under the above quoted decision we must deny the contention of the petitioners that the value of the land in question should be excluded from the gross estate up to the amount of the mortgage on the theory that the only interest which decedent had in the land was an equity of redemption. It seems to be settled under Connecticut law, except as between mortgagor and mortgagee, that the former is regarded as the owner of the land; that the latter has a power rather than an interest; that the mortgage is mere security for the debt; and that the mortgagee’s power may be exercised only to secure payment of his debt.
Aside from these considerations, it is now the unquestionable rule that “taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed — the actual benefit for which the tax is paid.” Corliss v. Bowers, 281 U.S. 376, an income tax case, but equally applicable to excise taxes; Burnet v. Guggenheim, 288 U.S. 280. The practical concept is that the holder of title to realty is the owner of the land regardless of the extent to which it is mortgaged; he is so treated for local tax purposes.
Moreover, it has recently been held by the Circuit Court of Appeals for the Second Circuit that securities pledged to secure loans may not be excluded from the gross estate. City Bank Farmers Trust Co. v. Bowers, 68 Fed. (2d) 909. The opinion of the court reads in part:
The statute, Sec. 403 (a) (1), plainly meant the opposite; among the deductions allowed were “ unpaid mortgages ”, an impossible item unless the whole value of the mortgaged property is to be included in the gross estate under *1311Section 402 (a), as an “interest * * * subject to tbe payment oí charges against bis estate.” Tbe regulations under tbe Act of 1918, (Art. 15, Regulations 37), specifically so provided; and their successors as well. Section 402 (a) was reenacted in 1921 and 1924 without change, though under a different section number; it is most unlikely that a contrary intent should have escaped expression for so long.
We accordingly hold that it was the intent of Congress as expressed in the statute to include in decedent’s gross estate the full value of her real estate, undiminished by the amount of the mortgage. The intent to allow deductions for only those mortgages “ contracted bona fide and for an adequate consideration in money or money’s worth ” is clearly expressed and it is plain that the mortgage here does not come within the class described.
There still remains the question of the power of Congress to include the value of property, in respect of which a mortgage has been given, as a measure of the excise tax. “ The thing taxed is the transmission of property from the dead to the living.” Heiner v. Donnan, 285 U.S. 312. Completed irrevocable transfers are not subject to death duties. Reinecke v. Northern, Trust Co., 278 U.S. 339. Petitioners’ view is that the execution and delivery of the mortgage was a completed transfer by way of gift inter vivos, consequently there was no transfer at death. There are cases sustaining the validity of mortgages executed and delivered as gifts, Goethe v. Gmelin, 256 Mich. 112; 239 N.W. 347; Cooklin, v. Cooklin, 260 Mich. 69; 244 N.W. 232; but there are other cases holding such mortgages to be unenforceable. See Baird v. Baird, 145 N.Y. 659; 40 N.E. 222, in which it is said: “ It is the debt which gives the mortgage vitality as a charge upon the land, and generally, where there is no debt or obligation, there is no subsisting mortgage.” Also Sheehy v. Kane, 235 N.Y.S. 882, holding that a mortgage given without consideration was “ a voluntary and unenforceable promise of an executory gift.” Whatever may be the local rules in such cases, in construing the provisions of the successive Federal estate tax acts “ there has been a steady widening of the concept of a transfer.” Burnet v. Guggenheim, supra. This is illustrated by such cases as Tyler v. United States, 281 U.S. 497, dispelling the doubt that previously existed as to whether upon the death of a spouse there was a taxable transfer in respect of property held by the entirety, and Chase Nat. Bank v. United States, 278 U.S. 327, holding that the termination by death of a power of disposition may be the legitimate subject of a transfer tax. Upon the death of petitioner’s decedent there was a transfer of her interest, which was that of owner in fee. True, the value of that interest had been diminished by the giving of the mortgage, but not irrevocably so. The diminution was conditional and the value was subject to restoration in the mortgagor in full by per*1312formance of the condition of the mortgage. The statute gives recognition to the existence of situations where there has been a diminution of value through bona fide encumbrances and allows deductions therefor. The allowance of deductions is a matter of legislative grace. New Colonial Ice Co. v. Helvering, 292 U.S. 435; Helvering v. Independent Life Ins. Co., 292 U.S. 371, and a claim for deductions must come clearly within the conditions prescribed. The mortgage here does not meet the statutory condition of having been contracted “ for an adequate and full consideration in money or money’s worth.” Cf. Latty v. Commissioner, 62 Fed. (2d) 952. Gifts in contemplation of death reduce the amount and value of property passing at death, but the statute not only does not allow any deduction therefor, but treats such gifts as taxable transfers* and this has been sustained as a permissible measure “ to secure equality of taxation, and prevent evasion of estate taxes.” Milliken v. United States, 283 U.S. 15. To allow deductions for mortgages given without monetary consideration to those who would be the natural objects of a decedent’s bounty would afford an easy means of escaping death duties, and we think it was within the power of Congress to refuse deductions in such cases.
The case of City Bank Farmers Trust Co. v. Bowers, supra, involved the estate of a nonresident alien and in such cases the Revenue Act of 1918 allowed deductions for expenses, mortgages, etc., not in excess of 10 percent of that part of the gross estate situated in the United States. The court intimated a doubt as to the validity of such limitation if it were applied to residents. But that question was not directly involved and the court did not specifically decide it. Moreover, the debts which were there under consideration appear to have been contracted bona fide and for an adequate, and full consideration, which is an important distinction between that case and this. It may be confessed that the question presented here is not entirely free from doubt, but in view of the considerations above set out, the statute is not so cleaxiy arbitrary and capricious that we are prepared to say it violates the Fifth Amendment without more direct authority than we now have. The inclusion of the full value of the property in the gross estate and the respondent’s refusal to allow a deduction for the mortgage are accordingly sustained.
Reviewed by the Board.
Decision will be entered wider Bule 60.