*2978 Respondent's valuation of stock for estate-tax purposes sustained for lack of evidence to show error.
*419 Proceeding for the redetermination of a deficiency in estate tax under the Revenue Act of 1924, in the amount of $6,451.22. Petitioner claims that respondent erred in valuing certain stock.
FINDINGS OF FACT.
The decedent at the time of her death owned 1,506 shares of stock in the W. F. Schrafft & Sons Corporation. On the back of the stock certificates there was printed the following excerpt from the by-laws of the corporation:
BY-LAWS - TRANSFER OF STOCK.
No shares of the Capital Stock shall be sold or transferred until the owner or holder thereof, or the person having them for sale has offered them to the Directors, who may thereupon ascertain and determine their value and shall thereupon have the right to purchase them at such value; and if the same be not done within ten days from such offer, the Board shall give the owner or holder or person having the shares for sale their written consent to the sale *420 thereof elsewhere*2979 at his pleasure. All shares so purchased by the Directors shall be resold as soon as may be, to such persons and in such manner as in their judgment will promote the interests of the Corporation. Every subscriber for or purchaser of shares shall be bound by and conform to this By-Law; and no sale or transfer of shares otherwise than as above prescribed shall be valid or be recognized by the Corporation, and no dividend shall be declared or paid upon any shares transferred in violation hereof.
All transfers of stock of the Corporation shall be made upon the books of the Corporation by the holders in person or by attorney thereunto duly authorized in writing.
Certificates of stock shall be surrendered and cancelled at the time of transfer.
The respondent in determining the value of the estate included the stock at a value of $325 per share.
OPINION.
ARUNDELL: Counsel for the petitioner, at the hearing and in his brief, has asked that we find that the board of directors of the W. F. Schrafft & Sons Corporation has the right to fix the value of the corporate stock, and that the board has the right to purchase the stock at the value fixed. For reasons hereinafter set forth*2980 we are unable to make the finding requested.
The estate of petitioner apparently is subject to administration under the laws of Massachusetts, though this is not clearly shown. It is unquestionably the law of that Commonwealth that a provision in the by-laws of the corporation such as in this case, creates a valid and enforceable agreement between the stockholder and the corporation and delivery of the stock may be compelled by an action for specific performance. ; ; ; . But whether a third party is bound by the price fixed by the directors has not, as far as we know, been decided and we are not called upon to decide it here, for it is not shown that any offer of the stock was made to the directors in accordance with the by-law. Undoubtedly before the provision of the by-laws set out in the findings of fact can be of any effect there must be facts within the scope of the provision. The quoted provision does not purport to extend to executors so as to require the surrender of the stock of a decedent, which was the situation*2981 in ; , cited by petitioner. In this case, so far as is shown, there has been no sale or transfer nor has anything been done in that direction which could possibly bring the case within the purview of the by-law here involved. The taxable stock went into the hands of decedent's executors, but on so passing it was not "sold or transferred" within the meaning of the by-law. Even had an offer been made to the directors there is nothing to indicate that they would have exercised their right to purchase the stock. It may as well be *421 supposed that they would have given their consent to a sale of the stock elsewhere as to suppose that they would have purchased it.
At the hearing of this proceeding petitioner's counsel offered in evidence a paper said to be an affidavit of the directors of the corporation fixing the value of the stock. It was not identified in any manner, and was admitted by counsel to be nothing more than an affidavit. Objection by counsel for the respondent, upon the grounds that it was an ex parte appraisal and not made pursuant to the by-laws to appraise stock*2982 offered for sale, was sustained and the affidavit excluded. There was no offer of any other evidence of the value of the stock, and this being the only question in the case, the respondent's determination must be affirmed.
Judgment will be entered for the respondent.