*1154OPINION.
Milliken :There are two issues involved in this proceeding. The first is whether the gifts made by Arthur L. Stark, hereafter referred to as decedent, to his wife of his preferred stock in the Harshaw, Fuller & Goodwin Co., his preferred stock in the Elyria Telephone Co., his stock in the Union Trust Co. of Cleveland, and of his savings account in the Union Trust Co., were made in contemplation of death as that phrase is used in section 402(c) of the Revenue Act of 1921. The other issue is, What was the value as of the date of decedent’s death of certain real estate which he then owned?
Section 402 of the Revenue Act of 1921 provides in part:
That 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—
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(e) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money’s worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.
It is vigorously contended that when decedent handed to his wife certificates of stock in Harshaw, Fuller & Goodwin Co., in the Elyria Telephone Co., and in the Union Trust Co., a gift was consummated in each case, and since a large part of these gifts were made long before decedent was afflicted with the malady which *1155caused Ms death, such gifts fall outside of the provisions of the statute.
On the one hand, the testimony of the donee is unequivocal on the question of the delivery of each gift and the intention of the decedent to make a gift. On the other hand, there is no testimony indicating that decedent assigned the shares to her or that he even indorsed them in blank, nor is it clear who received the dividends. The checks were, of course, payable to decedent until the stocks were transferred on the books of the various corporations. What became of these checks or their proceeds is by no means clear. It would seem that they were deposited in bank to credit of decedent. Whether his wife had the right to draw upon these bank credits is uncertain. When she purchased the stocks and bonds of the Cleveland Electric Illuminating Co. she used an order given her by decedent in order to withdraw the money from the.bank. On this point the petitioner contends that a valid gift of corporate stock can be effectuated even when the stock has not been transferred on the books of the corporation, where it was not indorsed even in blank, and where the donor collected the dividends. She cites in support of this contention, Grissom v. Sternberger (C. C. A.) 10 Fed. (2d) 764; 5 Am. Fed. Tax Rep. 5812. In this proceeding no one has testified as to the delivery of the stocks except the donee. We find in the record testimony given by the presidents of the Harshaw, Fuller & Goodwin Co. and the Elyria Telephone Co. relative to conversations had with the decedent subsequent to the date on which the donee testified the stocks were delivered to her. In these conversations it would seem that the decedent spoke of the transfers of the stocks to his wife as something to be done rather than something accomplished. It may be true, as'contended by petitioner, that the word “ transfer ” as used by decedent referred to transfer on the books of the corporations. In view of the conclusions we have reached, we do not decide whether the gifts were in fact consummated at the dates the stocks were delivered.
Conceding, for the purpose of this opinion, that the various stocks were not given to decedent’s wife until they were transferred on the books of the corporations, the question remains whether they were given in contemplation of death.
Since all the transfers were made on the books of the corporations in 1923, and decedent’s savings account was transferred to his wife the same year, and since decedent died on October 17 th of the same year, we are met at the outset with the provision of the statute to the effect that all gratuitous transfers made within two years prior to a decedent’s death shall be deemed to have been made in contemplation of death, unless the contrary is shown. The Court of Claims construed this provision in Meyer v. United States, 60 Ct. Cls. 474. *1156After referring to the difficulty of establishing the mental state at the time of the transfer of one who is dead and after quoting section 402(c) of the Revenue Act of 1918, which is in the same words as the corresponding provision of the Revenue Act of 1921, the court said:
But what is the result? Can it go further than to shift the burden of proof, leaving the presumption to prevail in the Government’s favor in the absence of a reasonable showing to the contrary? Taxing statutes, when of doubtful interpretation, are always to be construed in favor of the taxpayer, and the spirit of this rule must be completely ignored if, in determining a question of fact as between the Government and the taxpayer, rigorous rules as to the proof required to overcome the presumption of the law are to he applied. For if the Government was deemed entitled to a presumption in its favor because of the difficulties of proof, it is to be borne in mind that even though a conveyance was in fact not in any degree made in contemplation of death, the personal representatives might and frequently would be beset by many difficulties in proving that negative fact. Circumstances must largely be relied upon, and these should be fairly — indeed, we think liberally — construed in favor of the taxpayer.
We concur in this construction and applying it to the facts of this proceeding, the question for decision is whether at the time the stocks were transferred to decedent’s wife on the books of the various corporations, and at the time decedent gave her the order on his savings account, did decedent have a then present apprehension arising from his physical condition, which created a reasonable fear that death was near at hand, and was such apprehension the direct and animating cause of the transfers? See Rea v. Heiner, 6 Fed. (2d) 389; 5 Am. Fed. Tax Rep. 5470; Shwab v. Doyle, 269 Fed. 321; Spreckels v. State, 30 Cal. App. 363; 158 Pac. 549; Philip T. Starck, Executor, 3 B. T. A. 514; Spencer Borden, Executor, 6 B. T. A. 255.
We know decedent was suffering from a mortal disease. We know that he gave up his business and sold his stock in the concern he had helped to make successful. Respondent contends that not only was he mortally ill, but that he knew that death was impending and that this knowledge was the motivating cause of the gifts. We have before us a typical case, one side asserting that decedent had one leg in the grave and knew it, and the other side contending that he believed, and had reasonable grounds to believe that he would live his life’s allotted span and that his gifts were made as a result of a plan which he had made long before he was a sick man. He is dead and can not now reveal to us his thoughts and motives. We can only look back to what he said and did during the period involved and to his general conduct and demeanor.
Decedent’s wife and his family connections were not alarmed. His family physician is dead, but Dr. W. B. Hubbell, the physician who was called in his stead from time to time, has testified. We make the following excerpt from his testimony:
*1157Q. And what was hls general mental attitude from your observation toward his own condition?
A. Well, he never discussed that with me as to how sick he was. He never asked — he never questioned me about how the outcome might be. Not being his family physician he didn’t discuss that with me.
Q. Did he seem to be depressed about it at all?
A. Not particularly; no.
Q. Did he talk to you at all like he expected to get well?
A. Well, I think he did. He seemed to as far as I could judge even at the last.
Q. You mean the last week of his illness?
A. I don’t remember how many days I saw him before he died, now, I can hardly — I don’t know as I can state. During the last few days that I saw him he never talked as though he realized that he wasn’t going to get well.
J. A. McGean who is president of the Harshaw, Fuller & Goodwin Co., and who had known decedent since 1912, testified:
Q. Did he at any time in either ’22 or ’23, particularly ’23, say anything to you in regard to how seriously ill he was?
A. He never would admit that he was seriously ill. He never talked about his condition as being anything but a temporary one and that he was going to get over it right away.
Q. Was that right up to the last?
A. Yes; always anxious to talk about business. If he had any discussion about the future it was always what he was going to do when he got around again in a business way.
Q. In other words, he was looking forward to that time when he would get back to business?
A. Oh, yes; yes.
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Charles H. Price, who knew decedent intimately, testified:
Q. Did Mr. Stark discuss with you at any time during 1923 the condition of his health?
A. Why, of course, during Mr. Stark’s illness I always inquired about his health, but at any time he never gave me the idea that he considered himself seriously ill and at various times talked about his returning to business.
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During the summer of 1923, decedent contemplated a trip to Europe and often talked about it. Less than two months before his death, he purchased a new Packard car. He bought an open car with special equipment in order that he might take a journey. He, himself, often drove this car. He drove it on the Thursday preceding his death. If we are to adopt respondent’s theory of this case, which is that decedent knew that he was constantly in danger not only of imminent but even of sudden death, then his activities were those of a demented person. However, no one testifies that decedent did not, at this time, possess the same strong, vigorous mind which made his company a success. From the evidence before us, we reach the conclusion that petitioner has fully rebutted the presumption relative to transfers made within two years prior to death.
*1158But not only must decedent have lived in fear that death was near at hand, but such fear must have been the direct and moving cause of the gifts. While we have not decided whether the gifts of stock made in 1913 and other years were completed gifts, we have found as a fact that decedent did deliver the certificates to his wife with words of gift. This action showed that long prior to his illness, decedent had resolved to give these stocks to his wife. Why the stocks were not transferred on the books of the corporation we do not know, but it clearly appears that fear of impending death was not the animating, much less the sole cause of the transfers. This same purpose runs through all his gifts, the earlier as well as the later ones.
Looking at all the facts, as found in the testimony, and judging this man’s intention by his words and deeds, and giving full credence to the testimony of his wife, we are of the opinion that respondent erred in including these transfers in the gross estate of decedent.
The only remaining question is what was the value as of decedent’s death, of certain real estate then owned by him. We have found that the value of decedent’s property at the date of his death, in the 'Township of Sheffield, County of Lorain, State of Ohio, consisting of the lake front property having a frontage of 960 feet, and the Lane property which contained 2.85 acres, was $80,450. This is the value fixed upon this property by three experienced real estate dealers who testified in behalf of the petitioner. Respondent introduced no testimony whatever on the value of these properties.
The only other piece of property relative to the value of which testimony lias been adduced is No. 232 East Avenue, Elyria, Ohio. This was the residence of decedent in his lifetime. After the marriage of decedent’s widow to Lavelle, they purchased a home in Cleveland, and therefore desired to sell the Elyria residence. The only witness introduced relative to the value of this residence was Lavelle. He does not attempt to testify as to the value of this property as of the date of decedent’s death or at any other time. He testified merely that certain offers were made to him for the property, which he refused, and that he offered to sell at a higher price which he could not obtain. He does not state when these offers were made. They may have been made long after the death of decedent when property values may have changed. We have no competent testimony from which to determine, and therefore, we do not determine the value as of the date of decedent’s death of the residence in Elyria.
Judgment will be entered upon %0 days’ notice, wider Rule 50.
Considered by MaRQtjette, Phillips, and Van Fossaht.