*805 A trust for the petitioner's wife, later divorced, and his children was set up by another woman who was the defendant in settlement of litigation against her brought by the petitioner's wife, the trust naming petitioner as the grantor, although he transferred nothing to it. Termination of the trust could occur only at the joint election of petitioner and the attorneys for the adversaries in the suit. Held, the income of the trust is not taxable to the petitioner.
*757 The Commissioner determined a deficiency of $2,848.62 in petitioner's income tax for 1935, including in his taxable income the income of a trust for his divorced wife and his children.
FINDINGS OF FACT.
Petitioner, a resident of New York, was married in 1923, and two children were born of the marriage. On December 16, 1926, he and his wife separated; on December 23, 1927, they made a separation agreement, and later petitioner brought suit for absolute divorce in New Jersey. The wife counterclaimed for absolute*806 divorce, and in 1930 brought a separate action for criminal conversation and alienation of her husband's affection against another woman, claiming damages of $2,000,000.
*758 In October 1933, while both suits were pending, petitioner paid his wife $100,000 in full settlement of his obligation to provide for her support and in release fo her right of dower and all other interest in his estate during life or after; she released him from "all debts, sums of money, accounts, contracts, claims and demands whatsoever", and agreed to provide fully and adequately for the support, maintenance, and education of the children. The prior separation agreement was canceled. At the same time the wife's suit for criminal conversation and alienation of affection was settled. Solely in consideration for this settlement, the defendant "or others, but not including the petitioner" transferred $400,000 to the City Bank Farmers Trust Co., as trustee, under an instrument dated January 18, 1933, in which petitioner was designated as the grantor, and his "purpose of providing for the complete support and maintenance forever" of his wife and children was recited. The trustee was empowered to hold*807 and invest the corpus, pay taxes and expenses, collect the income, and pay the net amount thereof to the wife, who was to apply part to the children's support until each should reach the age of 21 years. When the child should attain that age, the trustee was to pay to him one-fourth of the income for life and the remainder to the wife for life. Upon the wife's death, corpus was to be distributed to the children, or if deceased, to their issue, or if they left no issue, to the wife's heirs and next of kin. In case of a child's death without issue during the wife's life, his interest in the trust was to go to the wife. Provision was made for termination of the trust and conveyance of its property to the "grantor" at the end of any calendar year upon a written notification to the trustee, signed not less than 13 months prior to such termination date, that a member of the law firm representing the defendant, the lawyer who represented the wife, and the petitioner elected to terminate.
On January 17, 1934, the Chancery Court of New Jersey granted an absolute divorce by a decree which made no provision relating to alimony to the wife or the care, custody, education, and maintenance*808 of the children; and no such provision has since been made.
OPINION.
STERNHAGEN: In determining petitioner's income tax for 1935, the Commissioner included in his gross income the $14,048.20 representing income of the trust. His determination was based upon the postulate that the petitioner was the grantor of the trust, and upon that hypothesis it cited ; ; and . Since that time the Brooks decision has been overruled by the same court in , which followed , and . In both the Fitch and the Leonard cases certiorari had been applied for.
But we think it unnecessary to consider the doctrines of those cases. The evidence shows that notwithstanding the language of the trust instrument the petitioner was not the "grantor" and that he transferred nothing in trust. He was but the nominal grantor of a fund which was actually*809 transferred by another in settlement of litigation in which that other was the defendant. This fact appearing in evidence free from doubt, the ground for the Commissioner's determination falls and the holding falls with it.
The nearest that petitioner is brought to participation in this trust is as a possible recipient of its property upon its termination. But the termination can only occur with the election of the attorneys for the two women who were adversaries in the suit. This clearly gave petitioner no use, control, or enjoyment of the corpus or income, and, even if he should be treated as the grantor, his election to revoke or revest would be subject to the control of substantial adverse interests.
The Commissioner's determination was in error in including the $14,048.20 income of the trust in the petitioner's taxable income. Another item of adjustment by the Commissioner is not in dispute.
Decision will be entered under Rule 50.