*1685 Held that respondent erroenously included certain property in the taxable estate of decedent.
*176 This proceeding was brought for redetermination of a deficiency in estate tax amounting to $192,402.70. The issues are (1) whether or not any part of the value of the estate of Daniel Edwards, deceased, father of the above named decedent, properly should be included in the gross estate of the decedent for the purposes of the Federal estate, tax, and (2) whether or not the assessment and/or collection of the deficiency is barred by the statute of limitations applicable thereto.
The parties to this proceeding entered into a stipulation as to the facts and from such stipulation an the exhibits attached thereto we find the facts as follows:
FINDINGS OF FACT.
Margaret Edwards Cobleigh, the decedent in this proceeding, died on August 9, 1924, a resident of Luzerne County, Pennsylvania, leaving a last will and testament, which was duly admited to probate in said county. The decedent left her surviving one child, *1686 now known as Anna Cobleigh O'Boyle.
The decedent was the daughter of Daniel Edwards, who died during the year 1901, a resident of Luzerne County, Pa., leaving a last will and testament which was duly admitted to probate and filed and recorded in the office of the Registrar of Wills for Luzerne County, Pa. The fifth and sixth paragraphs of the will of Daniel Edwards are as follows:
Fifth. I will and direct that my Executors shall have the right, power and authority to continue any business in which I may be engaged at the time of my death, either solely or in partnership with other persons, so long as it may be deemed advantageous to my estate by my said Executors or the majority of them, and so long as it shall be satisfactory and agreeable to the legatees and devisees of my residuary estate or the majority of them. And when it shall be deemed expedient as aforesaid, to discontinue such business, my interests therein may be arranged, settled, sold and disposed of in such manner and upon such terms, either as to cash or credit, and to such persons *177 as my Executors may deem advisable; full power to so discontinue, arrange, settle, sell and dispose of, being hereby*1687 granted unto my said Executors.
Sixth. Subject to the foregoing clauses contained in this will, I give, devise and bequeath the rest, residue and remainder of my estate to my Executors hereinbefore named and to their survivors and successors, in trust for the following uses, intents and purposes and for none other, to-wit: In trust to invest, hold, reinvest, collect interest, income and dividend, to continue to hold stocks, bonds and other securities, which I may have at the time of my death, as long as they may deem expedient, and to change the same as often and in such manner as they may deem expedient, using their discretion as to the character of the investments, looking more, however, to the security of the principal than the rate of interest; renting or selling the real estate and investing the proceeds thereof, until the death of my wife, Margaret Edwards, and until under the provisions of this will it shall be deemed best to discontinue and wind up my business (previding such business shall be carried on under the provisions hereof after the death of my said wife.)
Out of the income of my said estate I direct my said Executors to pay to my wife, Margaret Edwards, the*1688 sum of Five Thousand Dollars per year during her natural life, payable quarterly, and after said payment is made and the expenses of administering my estate are deducted, I order and direct my said Executors each year to divide the balance of the income of my estate equally, share and share alike, among my said wife, Margaret Edwards, and my three daughters, Mary E. Newell, Anna A. Jones and Margaret E. Cobleigh, in regular quarterly payments.
At the death of my said wife, Margaret Edwards, if it is deemed best for my estate under the provisions of this will to continue the business, then the income of my estate, after deducting the expenses of administering the trust, I direct my Executors to divide equally, share and share alike, among my said three daughters, Mary E. Newell, Anna A. Jones and Margaret E. Cobleigh in regular quarterly payments.
Either at the death of my said wife, Margaret Edwards, or else at the time when under the provisions of this will, it shall be deemed best to discontinue and wind up my entire business interests (should my business be carried on, under the provisions of this will, after the death of my said wife, Margaret) I direct the whole of the rest, *1689 residue and remainder of my estate to be divided equally among my said three daughters, Mary E. Newell, Anna A. Jones and Margaret E. Cobleigh, their heirs, executors, administrators and assigns, share and share alike.
In any of the cases of distribution above mentioned, if either or any of my said daughters should be dead at the time of such distribution, leaving to survive her or them lawful issue, such issue shall take by representation the share of said deceased daughter, the said distribution to be made among the parties named and the said lawful issue of any who may be deceased, the said issue taking by representation the share of the deceased daughter. And in case at the time of any of the said distributions any of my said daughters should be dead not leaving lawful issue, then such distribution is to be made among the surviving daughters, or the surviving daughters and the issue aforesaid of any deceased daughter or the issue of deceased daughters, should all be dead. In any case the issue of any deceased daughter shall take by representation the share such deceased daughter would have taken.
Margaret Edwards, the wife of Daniel Edwards, predeceased him. He left to*1690 survive him three daughters, namely, Anna A. Jones, *178 Mary Edwards Newell and Margaret Edwards Cobleigh, the latter being the decedent in this proceeding.
No part of the value of the corpus of the estate of Daniel Edwards, deceased, was included in the taxable estate of Margaret Edwards, Cobleigh, the decedent, by the State of Pennsylvania as the basis for the assessment and collection of a Pennsylvania inheritance tax.
At the date of the first and final account and audit of the estate of Daniel Edwards, deceased, the surviving executrix petitioned the Orphans' Court of Luzerne County, Pa., to interpret the will of Daniel Edwards by determining the following question:
Did testator, by the terms of his will, create vested remainders in his daughters or contingent remainders, the remaindermen to be determined upon discontinuance of his entire business interests?
The court did not directly answer this question, but made the following comment:
To determine this question would, in no way, affect the distribution about to be made. Be it a vested or contingent remainder under the Will, the elements of either a vested or a contingent remainder have been met and the*1691 distribution would be identical. The parties in interest have treated the matter as a contingent remainder and for the purpose of this distribution we shall so consider it.
The final account of the surviving executrix of Daniel Edwards, deceased, which was approved by the Orphans' Court of the State of Pennsylvania, discloses that one-third of the corpus of the estate was paid to Anna Cobleigh O'Boyle, daughter of the decedent, Margaret Edwards Cobleigh.
In the administration of the estate of Margaret Edwards Cobleigh, the decedent herein, no part of the corpus of the estate of Daniel Edwards, deceased, was distributed udner the will of said Margaret Edwards Cobleigh by any adjudication of the Orphans' Court of the State of Pennsylvania for Luzerne County.
At the time of his death in 1901 Daniel Edwards was the sole proprietor of a mercantile business in Kingston, Pa., carried on under the name of Edwards & Company and, in addition thereto, had invested largely in securities. The mercantile business of Edwards & Company was continued as a sole proprietorship until April 7, 1906, on which date the business was incorporated under the name of "Edwards & Company, Inc." The corporation*1692 had a capital stock of $93,900, divided into 939 shares of the par value of $100 each, all of which stock was issued at the time of incorporation in the name of the "Estate of Daniel Edwards, Deceased." Edwards & Company, Inc., continued conducting the mercantile business until March 27, 1926, when the entire capital stock of the corporation was sold by the estate and the proceeds of the *179 sale were received by the surviving executrix of Daniel Edwards as assets of his estate. The securities which were purchased to a large amount by Daniel Edwards during his lifetime remained intact, except as to sales and reinvestments, in the hands of his executrices from the date of his death until the date of final distribution, namely, February 4, 1927.
The capital stock of Edwards & Company, Inc., was of the value of $123.28 per share at the date of the death of Margaret Edwards Cobleigh, the decedent in this proceeding.
No distribution of the corpus of the estate of Daniel Edwards, deceased, was made by his executrices until after the death of Margaret Edwards Cobleigh.
On August 7, 1925, the petitioner herein, as executor of the estate of Margaret Edwards Cobleigh, filed*1693 a return under the provisions of the Federal estate-tax law. In this return the petitioner did not include any portion of the value of the estate of Daniel Edwards, deceased. The respondent, however, determined that one-third of the net value of the estate of Daniel Edwards, namely, the sum of $1,745,908.45, should be included in the gross estate of Margaret Edwards Cobleigh, deceased, for the purposes of the estate tax. This amount so included consisted in part of one-third of the value of 939 shares of the capital stock of Edwards & Company, Inc., at $123.28 per share. The correctness of these valuations is not contested by the petitioner.
The notice of deficiency herein was dated and mailed by the respondent to the petitioner on August 7, 1928.
OPINION.
VAN FOSSAN: The principal issue in this proceeding is whether or not at the time of her death Margaret Edwards Cobleigh had such an interest in the residue of the estate of her father, Daniel Edwards, deceased, that the value thereof should be included in the gross estate for the purposes of the estate tax.
The applicable statutory provisions are contained in section 302 of the Revenue Act of 1924 and read as follows:
*1694 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 -
(a) To the extent of the interest therein of the decedent at the time of his death which after his death is subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution as part of his estate; * * *
Under the quoted statutory provisions the real question at issue is whether or not the decedent had an interest in the corpus of her *180 father's estate which, after her death, was subject to the payment of the charges against her estate and the cost of its administration and was subject to distribution as a part of her estate.
It appears from the notice of deficiency attached to the petition herein that, exclusive of the value of any share of her father's estate, the decedent's gross estate amounted to more than $1,500,000. She died testate and by her last will and testament, a copy of which was attached to the stipulation of facts filed in the evidence in this proceeding, she bequeathed and devised the principal portion*1695 of the residue of her estate in trust, one-half of the net income of the estate being payable to her daughter during her life and the other half of the net income, together with the corpus of the trust, being ultimately distributable to her grandchildren. In our opinion, however, the principal issue in this proceeding is to be determined by a construction of the provisions of the will of decedent's father.
The respondent contends that, under the provisions of her father's will, the decedent in this proceeding "acquired a fee simple absolute estate in a one-third interest" in her father's estate. The petitioner, on the other hand, argues that the decedent's interest in her father's estate was conditional, the condition being her survival of the discontinuance of her father's business, and that, since she did not so survive, no part of the corpus of her father's estate ever became a part of her own estate.
The will of Daniel Edwards, deceased, appears to have disposed of both personal and real property. The evidence does not disclose how much of his estate consisted of realty, but it appears that a very large portion of it was personal property. Before his death he had carried*1696 on a large mercantile business and he had also invested to a very considerable extent in securities. When the surviving executrix made her final accounting, apparently all of the realty had been converted into money, pursuant to authority conferred on his executrices by Daniel Edwards, but when such conversion occurred, whether before or after death of the decedent in this proceeding, is not disclosed.
The will of the decedent's father was carefully drawn and evidences a definite, considered plan for the disposal of his property. It is apparent from the portions of the will quoted in the findings of fact that it was the testator's intent that, so long as his executrices elected under the provisions of his will to continue any business in which he might have been engaged at the time of his death, they should have absolute and complete control of the principal of his estate. His wife predeceased him, but, although the will was drawn prior to her death, after her death he made no alteration in the provisions concerning the continuance of his business. After the death of the testator's wife the discontinuance of his business by his *181 executrices became the fact determining*1697 the time for the distribution of the principal of his residuary estate.
By the sixth article of his will Daniel Edwards vested his residuary estate in his executrices, giving, devising and bequeathing to them such residuary estate in trust for the purposes and uses stated in the article. By this article the testator created an active trust and conferred upon his executrices as trustees broad powers with respect to the management thereof. That trust was to continue until such time as the executrices, under the authority conferred by the will, saw fit to discontinue and wind up the business which had been conducted before his death by the testator.
This vesting of the estate in the executrices in trust is in our opinion of primary importance with respect to the determination of the principal issue in this proceeding. For the provisions of the will creating the trust contain the only explicit and direct terms vesting the residuary estate in any person or persons. There is no specific or direct gift of any part of the principal of the estate to the decedent in this proceeding or to any of the beneficiaries named in the will. The gift to the beneficiaries is only implied and*1698 the implication is contained in the word "divide" used in the following provisions of the will:
Either at the death of my said wife, Margaret Edwards, or else at the time when under the provisions of this will, it shall be deemed best to discontinue and wind up my entire business interests (should my business be carried on, under the provisions of this will, after the death of my said wife, Margaret) I direct the whole of the rest, residue and remainder of my estate to be divided equally among my said three daughters, Mary E. Newell, Anna A. Jones and Margaret E. Cobleigh, their heirs, executors, administrators and assigns, share and share alike.
There being in the will no explicit words giving the corpus of the estate to the decedent and the other beneficiaries and the gift being merely implied by the use of the word "divide," it results that the gift of the residue of the estate is annexed to and dependent upon the division provided for in the will. The gift could not, therefore, take effect in any way until the division was made. Therefore, since by direction of the will the principal of the residuary estate was not to be divided until after the discontinuance of the testator's*1699 business, no interest in the residuary estate could vest in the decedent and other beneficiaries until the testator's business had been discontinued. In other words, under the provisions of the will not only were the possession and enjoyment by the beneficiaries of the residuary estate postponed until the discontinuance of the testator's business, but the vesting in the decedent and other beneficiaries of any interest in such residuary estate was also postponed until such time. It necessarily follows that the words "their heirs, executors, edministrators and *182 assigns" contained in the quoted paragraph directing division of the principal of the residuary estate are to be construed as merely defining the character and quality of the estate in personal and real property which the testator's daughters would take when and if the business carried on by the testator at the date of his death should be discontinued.
; , involved the question of whether or not the trust created by the will of the testatrix violated the rule against perpetuities. By her will the testatrix had bequeathed and devised her*1700 residuary estate to a trustee in trust for certain purposes and uses, conferring broad powers on the trustee and creating an active trust. There was no direct or explicit gift of the residuary estate to her grandchildren, among whom the testatrix intended that such estate should be divided ultimately. The will provided only with respect to the gift to her grandchildren that at a certain future time after the death of the last daughter of the testatrix the principal of the estate should be divided among her grandchildren. Referring to the provision for such division among the grandchildren, the Supreme Court of Pennsylvania said:
Even here there is no direct and explicit gift of the principal; it is only implied from the direction to divide. Chief Justice Gibson said, in : "Where a gift is only implied from a direction to pay, it is necessarily inseparable from the direction, and must partake of its quality; insomuch that if the one is future and contingent, so must the other be." And in Smith on Executory Interests, section 314, it is said: "Where there is no gift but in a direction to pay or transfer or divide among several persons*1701 at a future period, though the future period is annexed to the payment, possession, or enjoyment, yet it is also annexed to the devise or bequest itself. For, in this case, the direction to pay or transfer or divide, constitutes the devise or bequest itself; and therefore the vesting in interest is postponed, and not merely the vesting in possession or enjoyment.
We are of the opinion that the principles stated in the foregoing quotation from , are applicable to the principal issue in this proceeding.
The facts show that the decedent, Margaret Edwards Cobleigh, died before her father's business was discontinued by his executors. We, therefore, hold that at her death no interest in the residue of his estate was vested in her. It follows that, pursuant to the applicable statutory provisions, no part of the value of her father's residuary estate should be included in the decedent's gross estate for tax purposes.
As to the second issue, the petitioner contends that the assessment and collection of any taxes imposed by the provisions of the statute on the decedent's estate are barred by the provisions of section 310 (a) of the Revenue*1702 Act of 1926 which, it is claimed, is applicable because of the provisions of sections 318(a) of the Revenue Act of *183 1926. Section 310(a) of the Revenue Act of 1926 provides that the amount of the estate taxes shall be assessed within three years after the return was filed. The decedent died in 1924 subsequent to the enactment of the Revenue Act of 1924. The respondent seems to contend that section 310(a) of the Revenue Act of 1924 is applicable and that, therefore, the amount of the taxes imposed on decedent's estate by the statute might be assessed within four years after the return was filed.
We deem it unnecessary to determine whether the provisions of the Revenue Act of 1924 or those of the Revenue Act of 1926 are applicable, for the reason that in our opinion requisite action was taken within the time limited by either statute. The return was filed August 7, 1925, and notice of deficiency was mailed August 7, 1928. August 7, 1928, was within four years after August 7, 1925, and, in accordance with our views expressed in *1703 , was within three years after August 7, 1925. Our decision in Willingham Loan & Trust Co. was reversed by the United States Circuit Court of Appeals for the Fifth Circuit. See . But the decision of the Circuit Court of Appeals was in turn reversed by the United States Supreme Court in .
We are of the opinion that the assessment and collection of taxes imposed by the provisions of the statute on decedent's estate are not barred by any provisions of the statute of limitations.
Reviewed by the Board.
Judgment will be entered under Rule 50.