*164 Decision will be entered for the respondent.
Petitioner in 1930 guaranteed the stock margin trading account of his secretary. In 1941 he paid $ 31,372.44 under the guaranty. Later in 1941 he married his secretary, after making an antenuptial agreement relinquishing all claims against her property and having provided a trust fund for her benefit if she survived him. Held, under the facts and circumstances, petitioner is not entitled to a bad debt deduction for the amount so paid.
*1314 The respondent determined a deficiency in income tax for the calendar year 1941 in the amount of $ 20,606.34. The sole question is whether petitioner is entitled to a bad debt deduction of $ 31,372.44 from 1941 gross income. The stipulated facts are found as stipulated. Such facts are stated hereinafter to the extent necessary for our decision, together with other facts found from the evidence.
FINDINGS OF FACT.
Petitioner is an individual, residing at Langhorne, Pennsylvania. He filed his income tax return for the taxable year 1941 with*165 the collector of internal revenue at Philadelphia, Pennsylvania.
In May 1926 the petitioner retired from business and since that time has not been actively engaged in business other than attending to his investments and the management of his personal affairs.
Gertrude Stackhouse was in his employ as a stenographer from 1911 to 1923. Upon his retirement from business in 1926 she again entered his employ as secretary and bookkeeper and was still so employed in November 1941.
During the calendar year 1927 Gertrude Stackhouse opened a brokerage account with Robert Glendinning & Co., of Philadelphia, Pennsylvania. The account was operated for a time on a cash basis. After May 30 it was operated as a margin account. On September 30, 1930, the balance due the brokers was $ 7,681.92, and the market value of the collateral in the account was $ 9,337. On that date the petitioner executed and delivered to the brokers a contract of guaranty wherein he guaranteed the account of Gertrude Stackhouse and agreed to pay on demand any debit balance due thereon and any and all losses then existing on said account or thereafter arising therefrom. In addition to the guaranty, petitioner deposited*166 collateral for the account.
During the calendar year 1938 Gertrude Stackhouse opened a margin account with Auchincloss, Parker & Redpath, another brokerage house having an office in Philadelphia. The petitioner likewise guaranteed this account and deposited collateral valued at $ 100,000. On May 17, 1940, he deposited additional collateral valued at $ 15,000.
On the 26th day of June 1939 petitioner, by codicil to his will dated July 26, 1938, directed that if he or his executor should be required to pay any sum to Robert Glendinning & Co., by reason of his guaranty his executor should not seek reimbursement from Gertrude Stackhouse for the amount so paid. On the 8th day of July 1941, by another codicil to his will he directed that if he or his executor should be required because of such guaranties to pay any sum or sums, either to Robert Glendinning & Co., or to Auchincloss, Parker & Redpath, his *1315 executors should not seek reimbursement from Gertrude Stackhouse for any sum or sums so paid by him or his executor.
This will and the codicils remained unrevoked and unaltered on July 30, 1941. The petitioner's present will, which is dated April 22, 1942, and the codicils *167 thereto contain no provisions similar to the provisions contained in the above mentioned codicils.
On July 16, 1941, securities having a fair market value of $ 1,466.37 were delivered to Gertrude Stackhouse from the brokerage account with Robert Glendinning & Co. On July 30, 1941, that account was closed and the petitioner paid to the brokers in settlement of the balance due on that date from Gertrude Stackhouse the sum of $ 31,372.44. Petitioner received no note or other evidence of indebtedness from Gertrude Stackhouse for the $ 31,372.44 so paid by him.
On November 13, 1941, petitioner entered into an antenuptial agreement with Gertrude Stackhouse, wherein petitioner was referred to as "Matthews" and Gertrude Stackhouse as "Stackhouse," which, after reciting that marriage was contemplated between them and that Matthews desired to make a fair and reasonable provision for Stackhouse, contained the following provisions:
1. Matthews has, by amendment bearing even date herewith to an agreement of trust heretofore executed by him under date of July 26, 1938, set aside the sum of Four hundred thousand Dollars ($ 400,000) in trust, and has directed that at the time of his death the sum*168 of Twenty-five thousand Dollars ($ 25,000) in cash shall be paid therefrom to Stackhouse and has further directed that after his death the income from the balance of the principal of said fund shall be paid to her during her lifetime, as provided in such amendment. The said agreement of trust dated July 26, 1938 and the said amendment thereto bearing even date herewith have been shown to Stackhouse who hereby declares that she has fully examined the same.
2. Stackhouse does hereby agree to receive and accept the provision made for her as set forth in paragraph 1 hereof in lieu and in bar of all rights which she, as the wife, as the widow or in any other manner, might or could have in the real and personal property now owned or possessed by Matthews and which he may hereafter own or possess, whether such rights arise by common law, by any statute now or hereafter in force or in any other manner whatsoever, and Stackhouse does hereby agree that all property of every kind now or hereafter owned or possessed by Matthews shall be held by him during his lifetime and by his heirs, executors, trustees or assigns after his death free and discharged of any and all rights and claims of Stackhouse*169 of whatsoever nature and howsoever arising. Stackhouse does further agree that, if her joinder shall be required by law in any transfer of property of Matthews of any kind now or hereafter owned or possessed by him, she will at any time join in each such transfer without any consideration being paid therefor to her.
3. Matthews does hereby waive, relinquish and release all rights which he, as the husband, as the surviving spouse or in any other manner, might or could have in the real and personal property now owned or possessed by Stackhouse and which she may hereafter own or possess, whether such rights arise by common law, by any statute now or hereafter in force or in any other manner whatsoever, *1316 and Matthews does hereby agree that all property of every kind now or hereafter owned or possessed by Stackhouse shall be held by her during her lifetime and by her heirs, executors, administrators or assigns after her death free and discharged of any and all rights and claims of Matthews of whatsoever nature and howsoever arising. Matthews does further agree that, if his joinder shall be required by law in any transfer of property of Stackhouse of any kind now or hereafter*170 owned or possessed by her, he will at any time join in such transfer without any consideration being paid therefor to him.
On November 13, 1941, the petitioner amended an agreement of trust dated July 26, 1938, of which trust he was the grantor, in accordance with the above mentioned antenuptial agreement. The pertinent part of such amendment reads as follows:
Second: Upon the death of Settlor, Trustee shall establish separate trust funds out of the principal of this trust and shall make payment of gifts as follows:
* * * *
(5) The sum of Four hundred thousand Dollars ($ 400,000.) shall be set apart as a separate trust fund, to be designated Fund No. 5, for the primary benefit of Gertrude Stackhouse.
* * * *
(7) If the principal of this trust shall not be sufficient to provide in full for the establishment of all of said trust funds and the payment of all said gifts, Fund No. 5 shall be established in full before any of the others are established or paid in view of the fact that Settlor is legally obligated to establish that fund, and the respective amounts of the remaining funds and gifts shall abate proportionately.
Third: Trustee shall hold, apply and ultimately pay over said *171 trust funds as follows:
* * * *
(5) From the principal of Fund No. 5 Trustee shall pay the sum of Twenty-five thousand Dollars ($ 25,000.) in cash to Gertrude Stackhouse as promptly after Settlor's death as may be practical, if she shall survive Settlor; and from said fund Trustee shall also pay, in monthly installments, (i) an annuity at the rate of Ten Thousand Dollars ($ 10,000.) per annum, and (ii) any net income from said fund remaining after payment of said annuity to Gertrude Stackhouse, during the period beginning at Settlor's death and ending at her death. From and after the death of the survivor of Settlor and the said Gertrude Stackhouse, Trustee shall hold and ultimately pay over the then remaining principal of Fund No. 5 in accordance with the provisions of Paragraph 6 of this Clause Third.
Sixteenth: Settlor reserves the right at any time by instrument in writing signed by him and filed with Trustee to revoke or amend this agreement of trust in whole or in part or to change the beneficiaries hereunder; provided, however, that, should Gertrude Stackhouse become Settlor's wife, thereafter said right shall not be exercised without the consent of Gertrude Stackhouse so as*172 to make it impossible for Trustee to establish Fund No. 5 as hereinabove directed or so as to modify or amend the provisions hereof with respect to the disposition of said fund.
The present value of Gertrude Stackhouse's interest under the provisions of the trust set forth above as of November 13, 1941, as finally determined for gift tax purposes by the petitioner and the Commissioner of Internal Revenue was $ 145,995.68.
*1317 Petitioner and Gertrude Stackhouse were married on November 19, 1941, and have since lived together as husband and wife.
Petitioner made no demand on Gertrude Stackhouse for payment of the amount paid by him to Glendinning & Co., or any part thereof and took no steps to enforce collection.
In her 1941 income tax return Gertrude Stackhouse Matthews reported a salary of $ 2,080 as secretary for petitioner, dividends of $ 4,994, and interest of $ 393.23. In her 1942 income tax return she reported a salary of $ 2,080, dividends of $ 5,035.55, and interest of $ 680.86, and in her 1943 return she reported a salary of $ 2,080, dividends of $ 2,004.21, and interest of $ 126.38. During the last six months of 1941 her debit balance with the brokers exceeded the*173 value of the securities pledged. At that time she had properties not pledged worth about $ 12,000.
In his income tax return filed for the taxable year 1941 petitioner claimed as a deduction from gross income the amount of $ 31,372.44, explained in "Schedule C" of such return as "Indebtedness of Gertrude Stackhouse to Charles J. Matthews."
In September 1943 the account with Auchincloss, Parker & Redpath was closed and a net balance of $ 5,580 was paid to Gertrude Stackhouse Matthews. She turned this amount over to the petitioner.
The payment of $ 31,372.44 by the petitioner to Robert Glendinning & Co. constituted a gift by him to Gertrude Stackhouse and did not result in a debtor-creditor relationship between her and the petitioner.
OPINION.
The petitioner contends that upon his payment on July 30, 1941, of $ 31,372.44 to Robert Glendinning & Co., in settlement of his liability under the guaranty agreement, Gertrude Stackhouse became indebted to him in that amount, that she was insolvent during the last six months of 1941, and that he was therefore entitled to a deduction on account of a bad debt in computing his income tax liability for 1941.
The petitioner first guaranteed the *174 Glendinning account in 1930. In 1938 Gertrude Stackhouse opened a second brokerage account with Auchincloss, Parker & Redpath, which the petitioner also guaranteed. In 1939 the petitioner, by codicil to his will, directed that his executor should not seek reimbursement from her for any sum which the petitioner or his executor might be required to pay by reason of his guaranty of the Glendinning account. On July 8, 1941, the petitioner, by another codicil, made similar provision as to both guaranteed accounts. On July 16, 1941, certain securities were delivered to Gertrude Stackhouse from the Glendinning account and on July 30, 1941, this account was closed and petitioner paid $ 31,372.44 to the *1318 brokers in settlement of the balance due. The petitioner testified that he thought Gertrude Stackhouse was at that time worth some eight or ten thousand dollars. She testified that she owned unpledged property worth about twelve thousand dollars.
The petitioner relies upon the cases of , and (the appeal did not involve this issue), as controlling*175 here. These cases are distinguishable from the present case in that in each of the cited cases the facts and circumstances show that a debtor-creditor relationship arose, while in the present case the evidence shows, to the contrary, that a gift was intended and consummated.
The petitioner's intention is evidenced by the following significant facts. First, the petitioner had already manifested his intention, as expressed in the codicil to his will, that if he made such a payment his executor was not to seek to recover it from Gertrude Stackhouse. Second, when he made the payment in controversy he had permitted her, only a few days before, to withdraw securities from the account to the value of $ 1,466.37, which necessarily increased the amount he was required to pay under his guaranty. Third, while he was aware that she had some eight or ten thousand dollars in assets not pledged, he made no move to reach these assets. Fourth, in the antenuptial agreement executed on November 13, 1941, six days before the marriage of the petitioner and Gertrude Stackhouse, after referring to the provision he had made for the establishment after his death of a trust fund of $ 400,000 for his prospective*176 wife, to be in lieu and in bar of all rights she might have as his wife or widow, the petitioner relinquished all rights which he, as husband, surviving spouse, or in any other manner, might or could have in the property she then owned or might thereafter own, and agreed that her property should be free of any claims of the petitioner of whatsoever nature and howsoever arising. At the time of this agreement any debt that may have arisen from the petitioner's payment was outstanding. By the antenuptial agreement the petitioner relinquished any right to subject her property to the payment of the account. This was a voluntary action on his part. He could have stipulated that this particular obligation should stand, but did not choose to do so. While the petitioner argues that this provision was not intended to apply to claims arising through an ordinary debtor and creditor relationship, there is no doubt that it would preclude a recovery of the claim here involved.
The petitioner argues that the action of his wife in turning over to him the sum of $ 5,580 received by her upon closing the second brokerage account in 1943 showed that these parties recognized the existence *177 of the debt. Since they had been married nearly two years at that time and many payments of various natures had necessarily passed *1319 between them, we can not say that this circumstance supports the petitioner's contention. The petitioner's wife received a salary after the marriage and had other income from securities, but there is no showing that the petitioner required her to pay over any of this income to apply on the alleged debt.
Although the petitioner and his wife both said that on December 31, 1941, they considered the debt still owing, their conduct contradicts their statements. Considering the facts and circumstances of record, we are convinced that the petitioner intended to, and did, make a gift to his intended wife of the amount of the payment and that a debtor-creditor relationship did not arise between them as a result of it.
Even assuming that a debtor-creditor relationship did arise upon the payment, the petitioner is not entitled to the deduction claimed, for he made no attempt, such as was made in the Ortiz case, supra, to effect recovery against his debtor, who admittedly had assets, and he voluntarily relinquished any right he may have had to*178 do so. It is understandable that he would not wish to harass his intended wife by taking what properties she had, but where a taxpayer, because of the personal relations between himself and his debtor, is not willing to enforce payment of his debt, he is not entitled to deduct it as worthless. .
The respondent did not err in disallowing the deduction.
Decision will be entered for the respondent.