dissenting: Although normally a question of fact, see United States v. Wells, 283 U. S. 102, about which it would be difficult to disagree on a point of principle, here I am unable to reach the Board’s conclusion that the gifts of the house, the debentures and other securities, and the bonds were not made in contemplation of death.
Petitioners labor under á twofold burden of proof. They must show that the “impelling” motive of decedent himself was connected with aspects of life and not of death, United States v. Wells, supra; and, of course, in order to do so they must disclose to our satisfaction what decedent’s motive was. McCaughn v. Real Estate Land Title & Trust Co., 297 U. S. 606.
I agree that decedent’s motive for the transfers to his wife of the means to purchase annuities has been shown by petitioners; and I agree further that that motive'indicates decedent’s preoccupation with considerations ■ having to do with life rather than death. But I can not reach the judgment that this record contains any evidence of decedent’s own motive with respect to the other transfers, made a year later, nor that it can be supplied by the Board’s unfounded speculations as to what that motive might have been. This seems to me reversible error, even though the issue is one of fact, and even though, were there evidence to support it, the Board’s decision would be beyond overthrow on review. See McCaughn v. Real Estate Land Title & Trust Co., supra.
The view that there is no evidence of decedent’s own motive is, of course, founded upon the lack of any testimony, not only of what was in the decedent’s mind, but of what was upon his lips so far as the reason for the transfers is concerned. And that, of course—“the *653transferor’s motive”—United States v. Wells, supra, is the only issue. We know why decedent’s family suggested the transfers, but on their own version of the facts their true reasons were withheld from decedent. We know that the reasons they gave him were not the reasons upon which he could have acted, for he made the transfers differently than it is claimed they were suggested. Thus the family lawyer urged that decedent’s securities, being liquid, should be transferred to the wife to make it easier for her to collect the family income. The son says he gave this to his father as a reason for the transfer. But the securities were not transferred to the wife. They were given to the sons and daughters-in-law. Although one of the sons testified that he was in no need of financial assistance, decedent’s wife says she approached decedent with the question whether “it would not be well to make gifts to the boys * * * at the time when they needed it.” She says that in answer “he made no particular objection. He seemed to be perfectly willing to do so if I thought best.” And her reason for suggesting that gifts be made to the daughters-in-law was “just because I [sic] wanted to help them. That was all.”
Everything given as a ground for the Board’s assumption that decedent did not make the transfers as “substitutes for testamentary dispositions”, United States v. Wells, supra, is at least equally cogent in the opposite direction. The arrangement of his affairs and retirement, culminating in a virtual abandonment of all his disposable assets, is very near to that process of “putting his house in order” described in Updike v. Commissioner (C. C. A., 8th Cir.), 88 Fed. (2d) 807; certiorari denied, 301 U. S. 708. Although he may not have been told expressly of the critical nature of his illness, it would be strange if a condition so evident to his family went unperceived by the decedent himself. Since the first of a series of bad falls apparently connected with the illness had already occurred, “while he might not have known that the disease would cause his death, he must have fully realized its seriousness.” Travelers Bank & Trust Co., Executor, 29 B. T. A. 88, 94. It may even be that decedent’s gifts were part of his plan for disposition of the entire estate, for we are not advised when, under what circumstances, or in what manner, his will was fashioned. Cf. Igleheart v. Commissioner (C. C. A., 5th Cir.), 77 Fed. (2d) 704. But we do know that the gifts went to the natural objects of his bounty. Myers v. United States, 2 Fed. Supp. 1000, 1012; certiorari denied, 292 U. S. 629; McClure v. Commissioner (C. C. A., 5th Cir.), 56 Fed. (2d) 548; certiorari denied, 287 U. S. 669. And, finally, the “desire, almost a resignation, to conduct himself according to the wishes of his family” which the majority opinion finds to be decedent’s motive is certainly, if a motive at all, and if justified by any affirmative evidence, at least as consistent with knowledge that death was near, “that the *654donor is about to reach the moment of inevitable surrender of ownership”, United States v. Wells, supra, as with plans for the future.
While at times such evidence as the foregoing has been considered sufficient to warrant a conclusion that transfers were in contemplation of death, even with the burden upon respondent, e. g., Travelers Bank & Trust Co., Executor, supra, or where there was some actual evidence of other motives, e. g., Igleheart v. Commissioner, supra, here it is found to perform the function of evidence favorable to petitioners ; to sustain petitioners’ burden; to demonstrate the decedent’s impelling motive; and to justify the ultimate finding that that motive was not testamentary in nature. I am unable to concur.
Smith and Turner agree with this dissent.