*1057 Pursuant to written agreement with Butler University of Indianapolis, indiana, decedent, for the purpose of providing funds for the completion of a large building on the university campus, turned over real estate and stock of an aggregate value of $900,000, together with decedent's promissory note for $100,000, payable to the university 60 days after his death. After the death of decedent, the executrix and administrator of the estate, with the approval of the Probate Court, paid to the university the principal of the note, plus interest, in cash. Held, the $100,000 is not deductible in arriving at the value of the net estate for the purpose of determining estate taxes, either as a claim against the estate or as a bequest or transfer to a corporation organized and operated exclusively for educational purposes under section 303(a)(1) and (3), 1926 Act.
*832 The Commissioner determined a deficiency in estate tax in the amount of $64,838.49. *1058 The petitioners alleged numerous errors but have withdrawn all assignments of error alleged in the petition except one. The proceedings were submitted under Rule 30. It was stipulated that in computing the net estate certain deductions in addition to those allowed by respondent in computing the deficiency are allowable. Effect will be given to this stipulation upon recomputation under Rule 50. The only question involved is whether the respondent erred in computing the net estate in disallowing the deduction of $100,000, the principal amount of the note of decedent held at his death by Butler University of Indianapolis and paid in full by the *833 estate. all facts contained in the stipulation of facts not set forth herein are incorporated in our findings of fact by reference.
FINDINGS OF FACT.
Arthur Jordan died September 3, 1934. The estate tax return was filed with the collector for the district of Indianapolis, Indiana.
During his lifetime, on July 6, 1927, the decedent entered into a written agreement with Butler University of Indianapolis, Indiana, a Christian institution of higher learning, which qualifies as a corporation organized and operated exclusively*1059 for religious and educational purposes, no part of the net earnings of which inures to the benefit of any private stockholder or individual, and no substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation. The agreement provided in part as follows:
WHEREAS Arthur Jordan of Washington, D.C., and Indianapolis, Indiana, has for many years been interested in encouraging christian education and in promoting educational institutions of both public and private nature, and is especially interested in the education of young men and women in the arts, sciences, music and good citizenship in preparing themselves for their life's work, and realizing that Butler University affords an execptional opportunity for the young people of Indianapolis and the State of Indiana to avail themselves of such higher education, and being desirous of carrying out a long cherished purpose to erect for the benefit of such a University a building adequate to meet its needs in an educational way for the present and for some years to come, And
WHEREAS the undersigned Arthur Jordan has heretofore contributed a substantial amount toward the cost of the*1060 college building now in course of construction on the campus of said Butler University known as Fairview Park in the City of Indianapolis, Indiana, and realizing the need of additional funds, desires to contribute an additional sum sufficient to complete the three buildings, which in effect constitute one large college building now in course of construction, according to the plans and specifications prepared by Robert F. Daggett and Thomas E. Hibben, under the direction of the Board of Directors of Butler University, with such minor changes as said Board may see fit to make, which building is estimated to cost One Million Dollars, to that end does now and hereby enter into the following Agreement with Butler University.
AGREEMENT
Said Arthur Jordan hereby agrees:
(1) To convey by Warranty Deed to Butler University at the times and upon the conditions hereinafter set forth, the following described properties in Marion and Hamilton Counties, State of Indiana:
* * *
(4) Said Arthur Jordan agrees to execute and deliver to Butler University one (1) promissory note, payable to Butler University, for the principal sum of One Hundred Thousand Dollars ($100,000.00) payable at the*1061 Indiana National Bank, bearing six percent (6%) interest after maturity, and payable within sixty (60) *834 days after the death of said Arthur Jordan, with the privilege to said Arthur Jordan to make partial payments thereon at any time he may wish to do so.
* * *
In appreciation of the interest of Arthur Jordan in Butler University as manifested by his liberal support in the past and in this his most generous contribution and as a member of the Board of Directors and of the Executive Committee as well as the Building Committee, the building now made possible by his benefactions shall always be known and designated by his full name (Arthur Jordan). Butler University now agrees that over each of the main entrances of the three buildings which are now in course of construction, there shall be erected suitable tablets, or inscriptions, or carvings over or about the doorways of said buildings, as may be designated by Arthur Jordan, with such wording or inscription as may be agreeable to him. Butler University has already let a contract for the completion of this building and they agree to use their best efforts to complete same at as early a date as possible, and it is understood*1062 and agreed that the proceeds from the sale of the properties transferred to Butler University under this agreement shall be used in the building or buildings herein described.
* * *
The values of the real property and shares of stock transferred under the agreement by decedent to the university were $350,000 and $550,000 respectively. On July 11, 1927, the decedent, in accordance with the terms of the agreement, executed a promissory note in the principal amount of $100,000, payable to the university 60 days after his death, with interest at 6 percent per annum after maturity until paid.
Butler University complied with all the provisions of the agreement. The buildings mentioned in the agreement were completed in 1928 at a cost of $1,139,384.59 and are known as Jordan Hall. Over the entrance of each building the university has caused to be carved the name of Arthur Jordan in large letters.
Upon demand and with the approval of the Probate Court, the executrix and the administrator of the estate paid in cash on June 27, 1935, to Butler University the principal of the note in the amount of $100,000, plus interest of $3,916.70.
OPINION.
ARNOLD: The respondent in arriving*1063 at the net taxable estate for the purpose of determining estate taxes disallowed the deduction of $100,000, principal amount of the note of decedent paid to Butler University after his death, on the ground that the decedent's obligation under the note was not incurred for an adequate and full consideration in money or money's worth. Sec. 303(a)(1), Revenue Act of 1926.
The facts are not in dispute. The validity of the claim against the estate or the bona fides of the transaction is not questioned. The United States Supreme Court, in , *835 held that a promise to pay money to a charitable or educational institution, where the only consideration was a stipulated application of the amount received, does not constitute a claim against the estate contracted for an "adequate and full consideration in money or money's worth." This decision is controlling here. That the promise of decedent in the Taft case was evidenced by a letter and herein by a promissory note is of no import.
The petitioners contend that the "university spent $239,384.59 of its own funds in completing the building in 1928", which constituted*1064 a consideration not only adequate and full, but also in cash or money, for the decedent's promise to pay $100,000 sixty days after his death. There is no basis in the stipulation of facts for the statement that the university spent its own funds in completing the building. It was stipulated that the building was completed at a cost of $1,139,384.59 and that the value of the real property and stock transferred under the agreement aggregated $900,000. This would leave a balance of $239,384.59. However, it appears from the agreement that the decedent had contributed prior to the execution of the agreement "a substantial amount toward the cost of the college building" and was desirous "to contribute an additional sum sufficient to complete the three buildings, which in effect constitute one large college building now in course of construction." While the amount previously contributed by decedent is not disclosed, the statement in the contract above referred to is open to the inference that the decedent intended to contribute, and that his contributions covered, the entire cost of the building. The agreement of the university to designate the building by decedent's name and to inscribe*1065 or carve his name above the doorways ways of the building does not constitute an adequate and full consideration for money or money's worth. This agreement of the university was not a consideration in the sense of conferring a right or privilege of monetary value upon the decedent in payment or exchange for his contributions. As disclosed by the agreement, the designation of the building by the name of decedent was merely to evidence the university's appreciation of the decedent's contributions made prior to and under the agreement and of his interest in the university as a member of the board of directors, executive committee, and building committee.
The $100,000 is not deductible from the gross estate under section 303(a)(3) of the Revenue Act of 1926 as a bequest or transfer to or for the use of a corporation operated exclusively for educational purposes. The payment of $100,000 was not made to fulfill a bequest made in decedent's will. There was no transfer of the $100,000 by decedent during his life. He merely promised to do so. As stated in *1066 , "fulfillment of the promise by the executor does not relate back to the time the promise was made so as to convert her *836 [his] promise into a transfer by her [him]." , and , cited by petitioner, were decided prior to the Taft case and such decisions were inferentially overruled in the latter case. The United States Supreme Court referred to such decisions as contrary to holdings of the Board and the Circuit Courts that a promise to pay money to a charitable or educational institution, when the only consideration was a stipulated application of the amount received, did not constitute a claim against the estate contracted for an adequate and full consideration in money or money's worth, notwithstanding the fact that under local law the promise was enforceable, with which view the United States Supreme Court agreed.
The respondent's disallowance of the deduction of $100,000 is sustained.
Reviewed by the Board.
Decision will be entered under Rule 50.
LEECH and MELLOTT dissent. *1067