dissenting: That the phrase “ at the time of the distribution to the taxpayer ” used in section 113 (a) (5) of the Revenue Act of 1928 has the meaning “ at the time of the delivery to the taxpayer” appears to me to admit of no doubt. The Senate Finance Committee Report No. 960, p. 28, 10th Cong., 1st sess., explaining section 113 (a) (5), states:
It appears that the House bill is inadequate to take care of a number of situations which frequently arise. For example, the executor, pursuant to the terms of the will, may purchase property and distribute it to the beneficiaries, in which case it is impossible to use the value at the decedent’s death as the basis for determining subsequent gain or loss, for the decedent never owned the property. Moreover, the fair market value of the property at the decedent’s death can not properly be used as the basis, in the case of property transferred in contemplation of death where the donee sells the property while the donor is living.
Accordingly, the committee has revised section 113 (a) (5) and certain related sections, so as to provide that in the case of a specific bequest of personalty or a general specific devise of realty, or the transmission of realty by intestacy, the basis shall be the fair market value at the time of the death of the decedent. In these cases it may be said, as a matter of substance, that the property for all practical purposes vests in the beneficiary immediately upon the decedent’s death, and therefore the value at the date of death is a proper basis for the determination of gain or loss to the beneficiary. The same rule is applied to real and personal property transmitted by the decedent, where the sale is made by the executor. In all other cases the basis is the fair market value of the property at the time of the distribution to the taxpayer. The latter rule would obtain, for example, in the case of personal property not transmitted to the beneficiary by specific bequest, but by general bequest or by intestacy. It would also apply in cases where the executor purchases property and distributes it to the beneficiary.
It must be apparent from the foregoing that in many instances the phrase “time of distribution” has application to the time of delivery. Why should not the rule be applied universally ? I think it should be. I am furthermore of the opinion that the Committee, in referring to the case “ where the executor purchases property and distributes it to the beneficiary,” must have had in mind an act which the executors have the power to perform. That is delivery — not apportionment.
It is furthermore to be noted that elsewhere in the Revenue Act of 1928 the word “ distribution ” or “ distribute ” is used, notably in sections 112,115,161,162, and 182. In all of these sections the word has reference to payment or delivery. But, even more significantly, the word appears in section 113 (a) (9), the same section of the law involved here. In every instance where the word appears in these sections it is used synonymously with “ delivery.” Indeed, in section 113 (a) (9), Congress has used the word “ distribution ” in clear contradistinction to the word “ apportioned.”
*937Where Congress had occasion in the Revenue Act of 1928 to refer to income or property which is set aside for specific beneficiaries but not physically transferred to them, it used the phrase “ to be * * * distributed as the court may direct ” (as in section 161 (a) (2) and section 162 (b)), or referred to such income or property as “distributive share ” (as in section 182 (a)).
There is a sharp analogy between distribution of an estate and distribution of dividends. Dividends when declared are formally set aside out of surplus for stockholders, though not paid until a later date. In other words, so much of the corporation’s surplus is allotted to stockholders. Yet, in construing the Revenue Act of 1917 (section 81 (b)), dealing with “distribution made to the shareholders ” the courts held that “ distribution made ” meant “ paid ”— not “ declared.”
In Mason v. Routzahn, 276 U.S. 175, the Supreme Court held: “We think it clear that, for this purpose, the date of payment, not the date of the declaration of the dividend, is the date of distribution * * To the same effect is Lewellyn v. Harbison, 31 Fed. (2d) 740 (certiorari denied, 280 U.S. 560), in which the Circuit Court of Appeals for the Third Circuit held: “We agree with the Circuit Court of Appeals for the Sixth Circuit that a ‘ distribution made ’ means ‘ dividends paid,’ and not merely declared. * * * ”
It is furthermore to be noted that the courts and statutes of New York and of most jurisdictions regard “ distribution ” as being an act of executors done pursuant to a decree — not an act accomplished by the decree itself. The New York law is plain. The decree pursuant to which the taxpayers here received Buffalo, Niagara & Eastern Power Corporation and American Superpower Corporation stock did not say “the following securities are hereby distributed.” It said, “ ORDERED, Adjudged and Decreed That said Executors malee a 'partial distribution of the securities and property remaining in their hands.” (Emphasis supplied.) Had distribution been effected by the decree itself, it would have read, “ Ordered, Adjudged and Decreed that the following securities and property remaining in the hands of the executors be and they are hereby distributed in the following manner.” In other words, distribution was not effected by the decree. The decree simply directed the executors to make distribution. This is in line with the New York statute. Section 267 of the Surrogate’s Act provides:
Where an account is judicially settled', as prescribed in this article, and any part of the estate or fund remains and is ready to be distributed, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. It may also award to a surviving husband, wife, or child, the same relief as to set off of exempt property which *938may be awarded in bis or ber favor, on a petition presented as prescribed in section two hundred and one of this act. [Emphasis supplied.]
“ Payment ” and “ distribution ” are treated synonymously by the statute, payment applying to cash and distribution to property other than cash.
To the same effect are the New York cases. See Matter of Isaacs, 103 Misc. 184, 191; Matter of Thompson, 41 Misc. 420; Clapp v. Meserole, 38 Barb. 661.
New York by no means stands alone in regarding the decree as ordering the executors to make distribution (thereby denoting delivery) rather than itself effecting distribution. In Michigan, in the case of Burke’s Estate, 240 Mich. 444; 215 N.W. 413, 417, it was held: “The distribution in the sense that it is. used in the statute means a physical turning over of the estate to those who are by law entitled to it.” See also Scully v. Squier, 13 Idaho, 417; 90 Pac. 573; Goldberg v. Kidd, 5 S.D. 169; 58 N.W. 574.
In Brewster v. Gage, 280 U.S. 327, the Supreme Court used this language:
Petitioner’s father died testate May 20, 1918. The Surrogate’s Court at Rochester, N.Y., entered a final decree April 19', 1920, pursuant to which certain stochs were distributed to the petitioner as one of the residuary legatees. * * * [Emphasis supplied.]
The use of the word “pursuant” is an absolute negation of the idea that distribution is effected by the decree itself. Webster’s Dictionary defines “pursuant” as follows:
(As an adjective) “Acting or done in consequence or in prosecution (of anything); hence, agreeable; conformable, following, according; ” and (as an adverb) “Agreeably; conformably; according; as, pursuant to our contract.”
In Benjamin G. Chapman, Jr., Executor, 19 B.T.A. 105, we said:
In view of the pleadings herein and the admissions made by counsel at the hearing, the only controversy between the parties to this proceeding is as to the date that Fannie H. Higbee acquired, within the meaning of the Revenue Acts of 1921 and 1924, the 4,956 shares of the capital stock of the Burroughs Adding Machine Co. that were distributed to her on August 7, 1918, pursuant to the decree of the Circuit Court of the city of St. Louis.
* * * * * * *
The petitioner relies on the cases of F. W. Matthiessen, Jr., 2 B.T.A. 921; Alice Fisher Foster, 7 B.T.A. 1137; Nellie B. McGee, 13 B.T.A. 1181; and F. W. Matthiessen, Jr. v. United States, 65 Ct. Cls. 484, in which it was held that a legatee under a will acquires personal property within the meaning of the Revenue Acts of 1918 and 1921 when such property is distributed by the executor and that gain or loss on the subsequent sale of the property should be computed from the date of distribution. * * * [Emphasis supplied.]
In F. W. Matthiessen, Jr. v. United States, 65 Ct. Cls. 484, the court said in narrating the facts:
*939Subsequent to tbe execution of tbe above agreement, June 18, 1918, an order was entered by the probate court mríhorismg the executors to distribute to tbe residuary legatees all of tbe stocks of the testator, except certain ones with which we have no concern. [Emphasis supplied.]
It is elementary law that under the will of a decedent personal property composing the residuary estate of the decedent passes to the executor. In re Stoiber, 103 Misc. 654; 170 N.Y.S. 897; Anderson v. Wilson, 289 U.S. 20. Title continues in the executor until he transfers it pursuant to the decree. Anderson v. Wilson, supra. The decree itself does not effect a change in title. It simply evidences a right to receive it. The Supreme Court said in Brewster v. Gage, supra:
* * * The decree of distribution confers no new right; it merely identifies the property remaining, evidences right of possession in the heirs or legatees, and requires the administrators or executors to deliver it to them. * * *
In the light of the above I can not see any ground for a contention that the “ time of distribution ” used in section 113 (a) (5) of the statute has reference to any time other than that when actual distribution is made to the legatees. I think it is immaterial whether that distribution is made before or after the date of the decree ordering-distribution. It was unquestionably the intent of Congress to lay down a universal rule, which a layman could follow. If the “ time of distribution ” has reference to the date of the decree in this case, and in Arthur E. Braun, 29 B.T.A. 1161, to a period after the date that the decree was entered, the administration of the provision in question must be attended with the same uncertainty which obtained prior to the amendment of the law made by the section in question.