*915 Transfer in trust of stock of family corporation held not made in contemplation of death.
*117 The Commissioner determined a deficiency in estate taxes of $74,297.81. The petitioners make four assignments of error, three of which have been disposed of by stipulation. The only question left for decision is whether the property transferred by the decedent in trust on June 30, 1931, was transferred in contemplation of death, within the meaning of section 302(c) of the Revenue Act of 1926, as amended, and, therefore, is to be included in the decedent's gross estate for estate tax purposes.
*118 FINDINGS OF FACT.
The petitioners are the executors of the estate of Herbert G. Lowe, who died on November 25, 1934, at the age of 75 years. The estate tax return was filed by them with the collector of internal revenue at Newark, New Jersey.
The decedent, Herbert G. Lowe, was born in 1829. He moved to Ridgefield, New Jersey, in 1905 or 1906, and established a paper manufacturing business under the name*916 of Lowe Paper Co. This business was incorporated in 1914. The decedent's two sons, Donald and Malcolm, became active with him in the business after they had completed their educations. The Lowe Paper Co. was a "family corporation."
The decedent had long intended that his two sons eventually should succeed him in directing the affairs of the business. He directed their education so that they would be fitted to assume those duties. They acceded to his wishes and prepared themselves through adequate education and practical experience gained by working in the plants during their vacation periods. Each of the two sons entered the business as soon as he graduated from college. They gradually assumed greater responsibilities until about 1928, when Donald became the active manager in entire charge of manufacturing operations, and Malcolm assumed almost entire charge of sales promotion activities. There was an understanding between father and sons, from the date of the sons' entrance into the family business, that the father would in some way assure to them the ownership, control, and management of the corporation. Early in 1931 Malcolm discussed with the decedent the feasibility*917 of perpetuating the control of the business in his brother and himself by means of a trust fund. This discussion culminated in the creation of such a trust on June 30, 1931, when the decedent transferred 1,900 of the 1,950 shares of the common stock of the Lowe Paper Co. owned by him, together with certain other securities, to the Paterson National Bank as trustee. The other securities were included in the trust at the insistence of the trustee, in order to assure them of sufficient income for administration expenses of the trust without reliance upon dividends from the closely held Lowe Paper Co. stock.
There is a statement in the trust instrument that the purpose of the trust is "in order to assure a suitable income to my wife, Mary V. Lowe, during her life, and in order further to assure to my son, Donald V. Lowe, the control and management of the Lowe Paper Company, * * * as long as he shall remain active in the affairs of said company * * *." The trustee was directed to pay the income of the trust to the decedent's wife for life, and, upon her *119 death, to distribute the trust corpus to Donald and Malcolm in shares of equal value. Of the 1,900 shares of Lowe stock, *918 1,010 were directed to be distributed to Donald and 890 to Malcolm. The trust instrument reserved to the sons the right to direct the trustee to sell or exchange any or all of the Lowe stock and Donald was empowered to direct the issuance of voting proxies upon the stock.
The decedent continued to occupy the office of president of the Lowe Paper Co. and to receive its emoluments up until the time of his death. He was consulted on all major questions of policy and management, both before and after the creation of the trust in 1931. He visited the plant almost daily for periods ranging from one-half to four hours. During these visits he signed the company checks and frequently inspected the plant and discussed with the employees problems pertaining to its operations. He was a very active man during all of his life.
The decedent took an increasing interest in recreational activities such as golf, fishing, swimming, and shooting after the creation of the trust. He also tried to rehabilitate the Edgewater Trust Co., a bank in a neighboring community, of which he became president in 1933.
The decedent was in good health for a man of his years when he created the trust. His*919 physical appearance and his mental condition had not undergone any noticeable change for several years prior to June 30, 1931. He had undergone several surgical operations prior to that date and had had some illness and symptoms of illness, but the operations had all been successful and none of his illnesses or symptoms caused him to worry or gave him any reason to worry about his health.
The decedent's death was sudden and unexpected. The proximate cause of death was the occlusion of one of his mesentery vessels, a cause not directly associated with any previous illness.
The decedent had executed his last will in August 1929, thereby bequeathing his entire estate to his two sons and making no provision for his wife. The second clause of the will recites that the decedent's wife was in full accord with the disposition of the estate under the will and had been provided for already. There is no evidence in the record indicating the nature or extent of the provision for the decedent's wife mentioned in the will.
The dominant and controlling motive which actuated the decedent in making the transfer of property to the trust was to carry out his plan of placing his son Donald*920 in control of the business and for transferring ownership of the business to his two sons. The transfer was not made in contemplation of death.
*120 OPINION.
MURDOCK: The only question for decision in this proceeding is whether the transfer of June 30, 1931, was made in contemplation of death within the meaning of that term as used in section 302(c) of the Revenue Act of 1926, as amended. The Commissioner has determined that it was made in contemplation of death and the petitioners had the burden of showing that it was not so made. The Supreme Court, in , discussed at length the meaning of the term and said that the facts in each case must be carefully scrutinized to determine the dominant motive of the donor. If that dominant motive was one associated with life rather than with death, then section 302(c) may not apply.
That test has been applied to the evidence in the case. It is quite clear that the decedent had conceived a plan of training his sons in his business and of having them take over that business when they had demonstrated their ability to manage and operate it. The plan originated long before*921 1931. It was consummated in the transfer of June 30, 1931. The provision for paying the income of the trust to the decedent's wife for her life was incidental to the main purpose of giving Donald immediate control of the corporation through the power to vote the stock and of making present provision for the ultimate division of the stock between the two sons.
There is some evidence to indicate that this disposition was in the nature of or a substitute for a testamentary disposition of a large part, if not the bulk, of the decedent's property to the natural objects of his bounty. However, the evidence preponderates at least slightly in favor of the view that the decedent wanted his son to have control at once, during the lifetime of the decedent, and wanted only to assure his wife of means during her life. If his wife had predeceased him, the sons would have come into full ownership of the shares during their father's lifetime. He intended to continue his interest and aid in the business. His health and activity somewhat negative any testamentary aspect. His sons were actually managing the business and had been for several years. He apparently thought that the time had come*922 to reward them in accordance with his plan and agreement, so that during the remainder of his life he could see them in active control and aid them in their efforts to capably assume full control and eventually ownership of the business. As has been said, the evidence is not all one way, but it does preponderate slightly in favor of the petitioner's contention.
Decision will be entered under Rule 50.