dissenting: I accept the view of the majority opinion in saying that as to none of the policies involved in this proceeding did the decedent at the time of his death have the right to change the beneficiary of the life insurance provided by the policies, nor did he have the right to borrow on the policies or surrender them for their cash surrender value, without securing the consent of the life insurance beneficiary provided in the policies. Nevertheless, I think respondent should be sustained in his action in including the policies in decedent’s gross estate, less the statutory exemption of $40,000.
The policies were all endowment policies and had definite maturity dates, which are set out in the findings of fact. The decedent undoubtedly was the owner of these endowment policies up to the moment of his death. The interest of the life insurance beneficiary in these policies was conditioned upon her surviving the decedent. That fact is shown from the following quotation from the findings of fact:
* * * Each policy contained a provision that the amount' of the policy was payable to the insured when all the annual payments had been made, but if he should die before that date survived by his wife, then the amount was to be paid to her at his death, otherwise to his executors or administrators.
It seems to me that this state of facts brings this case within the rule laid down by the Supreme Court in Klein v. United States, 283 U. S. 231, and Helvering v. Hallock, 309 U. S. 106. It is undoubtedly true, I think, that Lewellyn v. Frick, 268 U. S. 238; Bingham v. United States, 296 U. S. 211; and Industrial Trust Co. v. United States, 296 U. S. 220, support the conclusions reached in the majority opinion. However, it seems to me that these cases are no longer controlling as to such' policies of insurance as we have in the instant case, by reason of subsequent decisions of the Supreme Court. For example, in the Industrial Trust Co. case, supra, the Supreme Court, speaking of subdivision (h) of section 302 of the Revenue Act of 1926, said:
Whether ány of these terms apply to an amount receivable by a beneficiary under a policy such as we have here, is fairly debatable. See Wyeth v. Crooks, (D. C.) 33 Fed. (2d) 1018, 1019. If any of them do apply, the provision is open to grave doubt as to its constitutionality and the rule of the Frick ease controls.
Subsequently the Supreme Court expressly decided, in United States v. Jacobs, 306 U. S. 363, that section 302 (h) of the Revenue Act of 1924 (same as in the 1926 Act) is constitutional and must be applied to cases which fall within its ambit. It is true that in the Jacobs case the question before the court related to the amount which should be included in decedent’s estate because of his joint tenancy interest in some real estate, but the constitutional question is the *910same as here. Section 302 (h) requires that section 302 (g), relating to insurance policies, be retroactively applied the same as the provisions of the section relating to joint tenancy. Therefore, because of the Supreme Court’s decision in United States v. Jacobs, supra, and Helvering v. Hallock, supra, I think the Commissioner should be sustained in his determination of the deficiency in this proceeding.
On this account, I respectfully dissent from the majority opinion.
Smith, Turner, Disney, and Oppee agree with this dissent.