*2096 Property which, under the laws of Missouri, the widow was entitled to receive upon the death of her husband in January, 1926, should not be excluded from the gross estate of the decedent in determining the Federal estate tax due from the estate of such decedent.
*527 This proceeding involves a deficiency in estate tax as determined by the Commissioner for 1926 in the amount of $2,843.51, against which a credit of $710.89 was allowed, thus reducing the deficiency proposed for assessment to $2,132.62. The question involved is whether the marital interest of the widow of the decedent was properly included in the gross estate of the decedent for estate-tax purposes.
FINDINGS OF FACT.
The petitioner is the executrix of the estate of Charles F McMullin who died testate on January 5, 1926, while a resident of Missouri and of whose estate his widow, Mattie McMullin, is the principal beneficiary.
Mattie McMullin married the said Charles F. McMullin on June 28, 1905, and at all times thereafter up to the time of his death on January 5, 1926, lived*2097 with the said Charles F. McMullin as his wife. No children were born of the marriage and the said Charles F McMullin at the time of his death left him surviving no children or other descendants in being capable of inheriting.
The said Charles F. McMullin named his widow as the principal beneficiary under his will, the provisions of which were accepted by the said widow. The property devised and bequeathed to the widow was in excess of one-half of the net value of the said estate.
Two pertinent paragraphs of the said Charles F. McMullin's will read as follows:
I devise, bequeath, and give to my beloved wife, Mattie McMullin, all my property, real, personal or mixed of which I am seized or possessed or to which I may be entitled at the time of my decease, wheresoever situated, of all kinds and descriptions, to her absolutely and forever to do as she sees fit, during her lifetime, but at her death to go as hereinafter set out; but during her lifetime to enjoy the use and income thereof.
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All *528 provisions herein made for my wife are in lieu of dower or other statutory provisions made and given to her by the statutes of Missouri.
In making the return for*2098 estate-tax purposes, the petitioner as executrix claimed credit against the valuation of assets as shown of one-half of the net value of the estate on the ground that this part of the estate came to the widow by virtue of the marriage relationship and not through the death of her husband. The credit claimed was disallowed by the Commissioner and results in the part of the deficiency which is here in controversy.
OPINION.
SEAWELL: This case was submitted on the pleadings and no briefs or oral arguments were presented and therefore we have little before us as to the positions of the respective parties with respect to the issue presented. However, from the petition it would appear that what the petitioner contends is that under the laws of Missouri "the share of the property given the widow by statute in lieu of dower, called 'statutory dower,' * * * comes to her by virtue of the marriage relationship, and not by virtue of his [the husband's] death." It is further contended that, "Even though the widow does not repudiate the will, that portion of the estate amounting to the sum given her by statute is not rendered taxable, because as to that portion of the estate, the husband*2099 having no power to deprive her of the same by will or deed, has not to that extent transferred it to her at the time of his death, it having become hers upon the consummation of the marriage." That is, if we understand the petitioner correctly, the value of whatever property to which the widow was entitled at her husband's death on account of her marital relationship with the decedent should be excluded from the gross estate of the decedent in determining the estate tax due from the estate of such decedent.
Section 302(b) of the Revenue Act of 1926 (which section is identical with the corresponding provision in the Revenue Acts of 1918, 1921, and 1924) provides as follows:
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 -
* * *
(b) To the extent of any interest therein of the surviving spouse, existing at the time of the decedent's death as dower, curtesy, or by virtue of a statute creating an estate in lieu of dower or curtesy.
Two cases have arisen under the foregoing provisions which we consider decisive of the issue presented. *2100 The first of these, (certiorari denied, ), held that the widow's taking of the deceased *529 husband's property under the laws of Missouri, whether real or personal and whether as dower or in lieu of dower, constitutes a "transfer" within the meaning of the Federal estate-tax statutes and accordingly the value of such share of the decedent's property should not be excluded from the gross estate in determining the estate tax due from the estate of the decedent. Likewise in (another case arising in Missouri), it was held that the value of the statutory marital interest of the widow in testator's estate, consisting of the interest which the widow would have in case of intestacy and which she could elect to take instead of taking under the will, is not deductible from the value of the gross estate in determining the Federal estate tax due from the estate of the decedent. The former case arose under the Revenue Act of 1918 and the latter under the Revenue Act of 1921, but, as heretofore stated, the provision*2101 with which we are concerned is identical with those involvel in the foregoing cases. Cf. also . We are accordingly of the opinion that the contention advanced by the petitioner should be denied.
Judgment will be entered for the respondent.