*2207 1. ESTATE TAX. - The amount paid to a trustee for management of a trust estate created by decedent during his lifetime is held to constitute a reduction of the trust property in determining the value at which it is to be included in the gross estate.
2. Id. - Amounts paid by the trustees out of the trust fund for the erection of a church, and to other institutions, under a power conferred upon them in the trust instrument to distribute the residue of the trust property in such way and at such time or times as they, in their unrestricted judgment may deem best, are not deductible under section 303(a)(3) of the Revenue Act of 1924.
3. Id. - A sum poaid to a religious organization, conditioned upon the right of the trustees to revoke it upon certain contingencies, is held to be a valid gift and deductible from the gross estate.
*47 This proceeding was brought to redetermine a deficiency of $39,557.11 in estate tax under the Revenue Act of 1924. The issues raised by the petition are (a) whether the sum of $25,000 paid to a trustee as a*2208 commission, and (b) whether certain sums paid to charitable and religious institutions by the trustees under a trust deed are deductible from the value of the gross estate. At the hearing the respondent raised the additional question of whether in computing the deficiency error was committed in allowing as a deduction from the gross estate the sum of $18,750 paid out by the trustees for the maintenance of a church cemetery. By reason of this alleged error the respondent claims an increased deficiency.
*48 FINDINGS OF FACT.
The petitioner is the administrator of the estate of Henry W. Brown, who died December 22, 1925, a resident of Germantown, Philadelphia, Pa.
On December 31, 1924, the decedent executed an instrument creating a trust fund of certain personal and real property. His three sons, Reynolds D. Brown, the petitioner, Henry I. Brown and Theodore E. Brown, and the Provident Trust Co. of Philadelphia, were named trustees of the property. The value of the personalty placed in trust was about $2,000,000.
The pertinent provisions of the trust agreement read as follows:
SECOND: Terms of the Trust: Said Trustees shall manage and control all moneys, investments, *2209 securities, real estate and property which may from time to time and at any time comprise the capital or principal of said Trust, and collect and receive the interest, income, dividends, rents, issues and profits thereof and accretions thereto, and collect and receive the capital thereof, and keep the real estate thereof in such good order and repair as may be considered expedient by said Trustees, and invest, reinvest and keep invested the capital or principal of said Trust in the manner and with the powers and authorities hereinafter fully set forth, and after paying out of said income all lawful costs, charges, taxes, commissions and expenses incident to the care and management of said Trust, said Trustees shall pay the net income and hold, pay over, transfer and distribute the capital or principal of said Trust, as follows, to wit:
(a) Said Trustees shall pay said net income unto said Settlor, for his life.
(b) At the decease of the Settlor said Trustees shall pay over the capital or principal of said Trust as follows, to wit:
I. Eighteen thousand seven hundred and fifty Dollars unto St. Anne's Protestant Episcopal Church, Middletown, Delaware, to be known as, or added*2210 to, the "Cemetery Fund" of said Church, the principal of this gift to be invested in securities approved by said Trustees and the income of it applied to the maintenance of said St. Anne's Cemetery and not otherwise. This to be accepted as in the nature of a Trust, upon the condition that it shall be subject to revocation by said Trustees within a period of ten years from the date of the decease of said Settlor, if the said Trustees shall deem the obligation assumed by St. Anne's Church not fully performed, and upon notice from them to this effect, after which the power of revocation as mentioned shall cease and the fund remain vested absolutely in said St. Anne's Church, subject, however, to the obligation to continue to apply the revenue as aforesaid, in good faith, to the purpose designated.
* * *
VIII. The following sums unto said Settlor's sons respectively:One hundred and thirty thousand Dollars unto Reynolds D. Brown.
One hundred thousand Dollars unto Henry I. Brown.
One hundred and thirty thousand Dollars unto Theodore E. Brown.
IX. The balance of the capital or principal of said Trust shall be distributed in such way or manner, and at such time or times, *2211 and in such proportions and upon such conditions as said Trustees or the survivors of them may, in the exercise of their sole and uncontrolled judgment, deem to be wise and best, bearing in mind the ideals of said Settlor with reference to the ownership *49 of money and to the ideas on the general subject as expressed by him from time to time. Should said Trustees or the survivors of them fail to agree in any instance upon the disposition of the whole or any part of the balance of the capital or principal of said Trust, then and in such case disposition thereof shall be made in accordance with the decision of any two of said individual Trustees, or in accordance with the decision of the surviror of said individual Trustees; provided, however, that in any event final disposition of the capital or principal of said Trust shall be made before the death of the survivor of the individual Trustees named herein.
* * *
SIXTH: Revocation: The right is hereby reserved unto said Settlor to revoke and annul this Deed and the uses and trusts thereunder, either wholly at any time or partly from time to time by an instrument or instruments of revocation to be executed and acknowledged*2212 by him and duly lodged with said Trustees; * * *
EIGHTH: Custody of Securities: It is hereby expressly agreed that Provident Trust Company of Philadelphia shall have the care and custody of the investments, securities and property which may constitute the capital or principal of the Trust created by this deed.
After the death of the settlor, the trustees transacted practically all of the business of the trust through the corporate trustee. For services rendered by the Provident Trust Co. as a trustee it received a commission of $25,000. No part of the amount paid was for services rendered to the settlor in connection with matters other than those involved in the trust, no charges having ever been made by the Provident Trust Co. for advice given the decedent on securities and other matters outside the trust. The petitioner did not charge a commission on the property that came into his possession as administrator of the estate. The sum of $25,000 was no more than reasonable compensation for management of the trust property.
In the estate-tax return filed by the petitioner he claimed as a deduction from the gross estate the sum of $50,000 for administrators' commission*2213 paid to the Provident Trust Co. and Theodore E. Brown, trustees, one-half to each. The respondent's 30-day letter, dated October 21, 1927, addressed to the petitioner, shows that he disallowed the entire amount claimed, since an investigation made by him disclosed that none of it had been paid.
Sometime after the death of his wife in 1918 the decedent expressed a desire to erect some sort of a memorial to her. During the last two years of his life the only kind of a memorial he considered erecting was a church on Oak Road, Germantown, which road he had constructed. Between May 13, 1924, and December, 1925, generally at the decedent's request, the rector of the Memorial Church of the Good Shepherd, a small church located about two and one-half blocks from the decedent's residence on Oak Road, called upon the decedent about twelve times for the express purpose of discussing the erection by the decedent of a church to replace the *50 one then being used by the rector's congregation. On April 7, 1925, the rector, decedent, and petitioner inspected the lots owned by the decedent on Oak Road available for a church site, and afterwards on the same day discussed at some length*2214 the possibility of erecting a memorial church on one of the lots. During the two years prior to decedent's death, he discussed the subject of constructing a church on Oak Road in memory of his wife with Theodore E. Brown and the petitioner on numerous occasions and inspected the lots a number of times with the idea in mind of selecting the one most suitable as a site on which to build the church. As the result of the visits which the rector paid the decedent, he gained the impression that the decedent had definitely made up his mind to erect a church in memory of his wife.
The physical condition of the decedent during the last two years of his life was such that it was an effort for him to walk the short distance between his residence and the lots on one of which he contemplated building the church. During the last few months of that period he was mentally unable to carry out any definite plans or ideas. On a number of occasions the decedent expressed to one of his sons the hope and expectation of taking active steps toward the erection of the church when he became better. Thereafter his health became worse, rather than better, and as a result he did not take up the building*2215 of the church.
The day after the decedent died, his son Henry informed the rector of the Memorial Church of the Good Shepherd that he and his brothers intended to endeavor to carry out their father's wish respecting the construction of a church in memory of his wife. About one week later the individual trustees, with the approval of the corporate trustee, acting under the discretionary powers conferred upon them in the trust agreement as to the disposition of the trust fund after making the specific payments provided for therein, made a formal offer to the rector and a committee of the vestry of the Memorial Church of the Good Shepherd to erect a church on Oak Road for their congregation as contemplated by the decedent. The offer was accepted and thereafter a church was constructed at a cost of $220,805.98, exclusive of the lot, which the parties have stipulated has a value for estate-tax purposes of $15,000. The cost of erecting the church was paid by the trustees from sums realized by them through the sale of securities belonging to the trust. The first payment was made on July 9, 1926, and the last one on August 2, 1929.
The trustees increased the amount to be paid to*2216 the St. Anne's Protestant Episcopal Church under the trust agreement from $18,750 to $19,300. They also made a gift of $3,000 to the Immanuel Church, New Castle, Del., to pay the cost of a new organ for the *51 church, and donated the sum of $1,000 to the Young Men's Christian Association, Germantown, towards the cost of a new building. These additional gifts were made by the trustees pursuant to the powers conferred upon them by the provisions of the trust agreement.
In the estate-tax return filed by the petitioner a deduction in the amount of $318,519.73 was claimed for charitable bequests. All of the amount claimed, except $18,750, was disallowed by the respondent on the ground that the trust instrument made no provision for the distribution of any part of the residue of the estate to charity. The respondent determined that the gross estate had a value of $2,191,569.78.
OPINION.
ARUNDELL: Petitioner claims as a deduction from decedent's gross estate the sum of $25,000 paid to the Provident Trust Co., Trustee, under the trust agreement executed by the decedent before his death. The deduction of this amount is sought either on the ground that it is an administration*2217 expense or a claim against the estate.
As set forth in the findings of fact, the decedent some time prior to his death created a trust estate and conveyed to it property having a value of more than $2,000,000. The Provident Trust Co. was the custodian of these funds and one of the trustees under the trust instrument. In determining the value of the decedent's estate for the purpose of computing the tax due under the Revenue Act of 1924, there was added to decedent's gross estate at the time of his death the value of the property theretofore conveyed by decedent in trust. No objection to this is made by petitioner.
The evidence, in our opinion, does not establish that any part of the sum of $25,000 was for services rendered to decedent apart from the trust established by him, and we do not believe that the amount can properly be characterized as a claim against the decedent. Cf. . It is equally difficult to characterize the amount paid as an administration expense, but we do not find it necessary to pass on that question directly. As we view it, the sum of $25,000 was paid to the Provident Trust Co. for services rendered in*2218 receiving and administering the trust estate, and there existed against the trust estate a liability to the Provident Trust Co. for reasonable compensation for the services rendered by it. The Pennsylvania law fixes no rate of compensation for trustees, the amount allowable being determined according to the circumstances of each case. ; . But from the testimony of a trust officer of the Provident Trust Co. and considering the size of the trust fund, we have no doubt that the sum paid to the trustee was well within the amount that would be *52 awarded by the Pennsylvania courts as reasonable compensation. The fact that the Provident Trust Co. had submitted no account prior to decedent's death is not material, for we are not concerned with the time any item may be deducted, but solely with the value of the trust estate and in determining that value, outstanding liabilities and claims of all sorts against the estate must be taken into consideration.
The next question for consideration is the claim for a deduction of the amount of $220,805.98 for the erection of a church. This is claimed under section*2219 303(a)(3) of the 1924 Act, which allows the deduction of:
The amount of all bequests, legacies, devises, or transfers * * * to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes * * * or to a trustee or trustees * * * exclusively for religious, charitable, scientific, literary, or educational purposes * * *.
The trust instrument here involved does not designate the beneficiary, and if a private trust were claimed under it the claim would undoubtedly fail because of uncertainty. The law is more lenient in the case of charitable trusts and, generally, it is as stated in ; :
Though the beneficiaries are described in an indefinite and uncertain manner, the courts will enforce the bequests and uphold the trust if by any means the beneficiaries are ascertainable. If the question of the designation of the beneficiaries is left to trustees, it is no objection to the validity of the trust, and it is only in cases where the beneficiaries named are so vague and uncertain that courts are incapable of executing the*2220 trust that the trust is declared to be invalid.
The law of Pennsylvania is particularly liberal in this respect. See , and footnote to ; ; . In all of the above cases it was clear that the settlor intended to create a charitable trust and it was only necessary to search for the object of his intent. In the present case there is nothing whatever in the trust instrument to indicate any charitable intent on the part of the decedent. There is not even the exceedingly indefinite intent which was expressed in , where the testator left the residue to her executors to be distributed "among such religious, charitable and benevolent purposes and objects or institutions as in their discretion shall be best and proper." Here, the only limitation on the trustees' discretion is that they bear in mind "the ideals of the said settlor with reference to the ownership of money and to the ideas on the general subject as expressed from time to time." We can not find in these words anything*2221 that a court could lay hold of and execute as a charitable trust. Even in Pennsylvania*53 where, as we have shown, the courts will seldom allow a charitable trust to fail for indefiniteness, the decisions do not go so far as we are asked to go here. In the case of ; , it is said:
So long as the gift is to be a charitable use, the discretion reposed in the trustee may be coextensive with the disposing power of the donor himself. This is subject to the qualification that the discretion must be restricted to a purpose which is "charitable" in the technical meaning of the word. If it can by any possibility be exercised outside if the limits of that definition, it is invalid. (Italics supplied.)
The instrument before us contains nothing which would restrict the discretion of the trustees to any charitable trust. Testimony was received to show that the decedent in his lifetime had spoken of the erection of a memorial church, but whether this constituted one of his ideals as to "the ownership of money" and was in line with his "ideas on the general subject" is not shown by the evidence. *2222 What were the decedent's ideals as to the ownership of money, and did the building of a church have anything to do with them? It is difficult to see the connection and in our opinion the evidence falls short of establishing it.
The trustees also distributed $3,000 to a church in Delaware and $1,000 to a Y.M.C.A. and deductions for these sums are asked. These amounts were paid to the trustees under the same general powers as those under which the church mentioned above was erected and which we hold do not constitute a charitable trust. Accordingly, the respondent is sustained in disallowing the deductions claimed.
The last question to be decided arises out of respondent's claim that his allowance of a deduction of $18,750 which was paid out of the trust fund to St. Anne's Protestant Episcopal Church was erroneous because the gift was conditioned upon the right of the trustees to revoke it within ten years if they deemed the church not to have complied with the conditions of the gift. A gift coupled with a condition does not necessarily invalidate it. For example, a gift of bonds in praesenti is not invalid because coupled with a condition that the bonds should revert*2223 to the donor upon the death of the donee. . A gift inter vivos of money is not invalid because of the fact that the donee promised to let the donor have part of it if he recovered from his illness. ; . The agreement on the part of the donee to pay interest to the donor is not such a condition as will defeat a gift. ; . And where the use of property is given so long as it continues to be used for certain purposes, the donor in *54 seeking a reversion must establish the breach of the condition as a fact. A forfeiture will not be worked at the mere whim of the donor. ; . There is no evidence here of any act on the part of the donee which would give the trustees any right to claim a forfeiture, and as long as the money has been paid over to it and devoted to charitable uses in accordance with the clearly expressed intent of the settlor, it is our opinion that it should not be*2224 disallowed as a deduction. Cf. .
Decision will be entered under Rule 50.