*747 The decedent and his wife executed an instrument by the terms of which each transferred certain property in trust, the amount transferred by the decedent being about 90 percent of the whole. Provision was made for payment of the income of the property to the grantors during their joint lives. Upon the death of either the trustee was to continue to hold the property for the benefit of and pay the income to the survivor. Upon the death of the survivor the corpus was to go to certain specified persons. The trust was subject to termination by either grantor during their joint lives, and by the survivor of them. Held, that the interest of the decedent in the trust property, there being no proof that it was less than about 90 percent, as determined by the respondent, is includable in his gross estate, under the provisions of section 302(d)(1) of the Revenue Act of 1926, as amended by the Revenue Act of 1934.
*1398 This proceeding involves the redetermination of a deficiency of $6,301.21 in estate tax. The issue relates*748 to the amount of corpus of a trust to be included in the gross estate of the decedent. Other issues raised by the petition and respondent's amended answer were settled by an agreement filed at the hearing and will be reflected in the recomputation to be filed under Rule 50.
FINDINGS OF FACT.
The petitioner is the duly appointed executor of the estate of Thomas I. Walker, who died testate August 2, 1934, a resident of Ridgefield, Connecticut.
On November 3, 1930, the petitioner's decedent and Marion A. Walker, his wife, executed and delivered a trust instrument transferring to the Colonial Trust Co., in trust, certain stocks and bonds named therein as being transferred by each grantor, with power to hold, manage, sell, invest, and reinvest the corpus of the trust. The instrument recites that the grantors desired to create the trust "in order that they may be assured of a certain income during their joint lives and the life of the survivor of them." Other provisions in the trust deed read:
During the joint lives of the Grantors, the Trustee shall pay over to them monthly, or at such other periods as may be mutually agreed upon by them, and the Trustee, the net income arising*749 from said fund, or if requested by said *1399 Grantors or either of them, deposit said income to their credit in a bank designated by them.
Upon the death of either one of the Grantors, the Trustee shall continue to hold said trust fund for the use and benefit of the survivor and pay over said not income to the survivor or deposit the same to his or her credit for and during his or her life.
Upon the death of both of said Grantors said trust shall cease and terminate, and as soon as practicable the Trustee shall, after paying any taxes and other charges that may be properly chargeable to the trust estate, distribute the principal of said trust fund to Edward Walker and Ralph Walker, sons of the Grantors, in equal shares. If either one of said sons should have previously died, leaving issue or children of issue, said issue or children of issue shall take and receive the share their parent would have received if living. If, however, either one of said sons should be then dead and there should be no issue of his or children of issue then living, the surviving son of the Grantor, or his issue, shall take and receive all of said trust fund.
* * *
This trust agreement*750 may be terminated by either party, during the lifetime of both Grantors or the survivor of them, upon thirty days notice, in writing, to that effect, and if so terminated the Trust Company agrees to pay over and deliver to the Grantors or to the surviving Grantor all property held by it under this agreement.
At the time of the execution of the trust instrument the aggregate fair market value of the securities transferred and assigned by the decedent and his wife was $228,067.20 and $26,673.75, respectively.
The trustee made no effort to segregate the corpus of the trust according to the contributions made by each grantor. Neither did it make any effort to segregate the proceeds of the sale of corpus, or securities acquired with the proceeds of sales. Other than that certificates for three blocks of stock were in the name of the decedent, the records of the trustee do not show the securities contributed to the trust by each of the grantors. The securities transferred in trust were listed in an account kept by the trustee. Entries were made in the account from time to time to record sales, reinvestments, and additions of securities and cash to the trust.
The trust was in*751 full force and effect from the time of its creation until the death of Thomas I. Walker. During that period the trustee made monthly distributions of income of the trust by checks drawn to the order of Thomas I. Walker, except that the last check, issued in July 1934, was drawn to the order of Marion A. Walker. The trustee issued the checks in favor of the decedent at the request of one or both of the grantors. Without such a request the checks would have been drawn to the order of Thomas I. Walker and Marion A. Walker or separate checks would have been issued. All of the checks were deposited in a checking account opened on July 24, 1930, in the name of "Thomas I. Walker and/or Marion A. Walker, survivor."
The records of the trustee were kept on the theory that each grantor had a 50 percent interest in the trust.
*1400 In the estate tax return filed by the petitioner the assets of the trust were reported at a value of $192,181.98, one-half of which it included in the decedent's gross estate. In his determination of the deficiency the respondent reduced the value of the assets to $191,786.93, an amount the parties now agree is the fair market value of the corpus of*752 the trust at the time of the decedent's death, and included 89.53 percent thereof, or $171,706.84, in the decedent's gross estate as the value of the decedent's interest in the trust.
OPINION.
DISNEY: The petitioner contends that the decedent and his wife held their interests in the corpus of the trust as tenants in common and that only one-half of the value of the principal of the trust estate is includable in the decedent's gross estate. The respondent's contention is that the decedent and his wife held their beneficial interests in the estate as joint tenants and that 89.53 percent of the value of the corpus is taxable as part of the gross estate of the decedent. In the view we take of the proceeding, it is unnecessary to pass upon the character of the interest the beneficiaries had in the trust property.
Each of the grantors reserved the right to terminate the trust upon 30 days' written notice, but the power was never exercised. The petitioner argues that if the power of revocation had been exercised, the decedent would not have been entitled to receive in excess of one-half of the corpus of the trust estate. The view of the respondent is, in effect, that the decedent, *753 having made his contribution coupled with a power to revoke, would have been entitled to receive 89.53 percent of the principal in the event of termination of the trust by either of the grantors. The petitioner's theory is that the trust instrument effected a gift in praesenti by the decedent to his wife of so much of his property as exceeded that of his wife. The respondent's position on the point is that the power reserved to revoke stood in the way of a completed gift inter vivos, and brings into operation the provisions of section 302(d)(1) of the Revenue Act of 1926, as amended by the Revenue Act of 1934, reading, in part, as follows:
To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, * * * except in case of a bona fide sale for an adequate and full consideration in money or money's worth.
No claim is being made by the petitioner and it does not appear that the transfer was a "bona fide sale for an*754 adequate and full consideration in money or money's worth." ; ; ; affd., .
*1401 The preamble of the trust deed recited that the object of the trust was to insure the grantors income during their joint lives and the life of the survivor of them. Nowhere in the instrument is there an express declaration on the part of either grantor to make a gift inter vivos of property to the other. Neither did the grantors specify the proportions in which they were to receive the income of the trust or the corpus in the event the trust was terminated by either grantor. The trustee distributed all of the income, except the amount represented by the last distribution, directly to the decedent in accordance with requests made upon it by one or both of the grantors. These instructions were apparently given to the trustee from time to time as the occasion therefor arose and obviously did not modify the trust deed as to distribution of income, or the corpus. *755 Until the death of the decedent the trust continued in full force and effect, with a provision empowering the decedent to terminate the trust. Upon the happening of such an event, the trustee was directed "to pay over and deliver to the Grantors or to the surviving Grantor all property held by it under the agreement." The death of the decedent terminated this power of revocation and until then there was no gift inter vivos of any part of the corpus transferred to the trust by the decedent. ; ; affd., ; certiorari denied, . The transfer occurred upon the extinguishment of the power and this was brought about by the death of the decedent. The termination by death of the power of revocation constituted a transfer subject to the imposition of estate taxes. ; , and cases cited therein.
Moreover, under the principles enunciated in *756 , and , the trust being revocable, there was no gift inter vivos by the decedent to his wife of any portion of what he contributed to the trust, and the whole of his contribution remained in his estate for the purposes of the estate tax. If we were to assume that a tenancy in common was created, as contended by petitioner, any presumption that the tenants in common held by moieties is overcome by the fact that the contributions by decedent and wife were in unequal proportions, the proportions determined by the respondent. ; ; ; . Generally, whatever is true at law of a legal estate is true in equity of a trust estate. .
Aside from reinvestments of the corpus, securities and cash were added to the trust, but the record does not disclose by whom the contributions were made. In the absence of proof that the decedent's *1402 interest in the*757 trust at the time of his death was less than 89.53 percent, the Commissioner's action in including in the gross estate of the decedent the sum of $171,706.84 as the value of decedent's interest in the principal trust will not be disturbed.
Decision will be entered under Rule 50.