*1798 1. Where the settlor of a trust estate reserves to himself alone a power to alter, change or modify the trust, such reservation renders the transfer incomplete until his death. The property is therefor properly included in his gross estate subject to tax under section 302(d) of the Revenue Act of 1926. This is true even though in the trust agreements, the settlor expressly provided that if there was a revocation of the trust he could not designate himself or his estate as beneficiary.
2. Valid claims for balances due on subscriptions made by a father to a hospital and a university for memorials therein to a son killed in the World War are not, under section 303(a)(1) of the Revenue Act of 1926, claims against the decedent father's estate "contracted bona fide and for an adequate and full consideration in money or money's worth" and are, therefore, not allowable as deductions from his gross estate.
3. New York estate tax, amounting to $866,135.98, paid in respect to property included properly in the gross estate of the decedent, held, allowable as a credit to petitioners against the Federal estate tax, to the extent it does not exceed the 80 per cent credit provided*1799 by section 301(b) of the Revenue Act of 1926.
*1017 The respondent determined a deficiency of $103,768.22 in estate tax due from the estate of William H. Porter, who died a resident of the State of New York on November 30, 1926.
The errors assigned are: (a) The inclusion in the gross estate by respondent of the value of certain property alleged to have been transferred in trust on November 27, 1926, amounting (less the $5,000 exemption) to $211,125; (b) the refusal of the respondent to allow as proper deductions as debts of the decedent certain amounts paid by the executors on account of pledges signed and obligations incurred by the decedent in favor of certain charitable and educational institutions; (c) the refusal of the respondent to allow full credit for taxes actually paid as State inheritance taxes; and (d) the refusal of the respondent to allow as a credit against the Federal estate tax the amount of the New York estate tax, paid and to be paid by said estate, within three years from*1800 the date of the filing of the Federal estate-tax return.
FINDINGS OF FACT.
The petitioners are the duly qualified and acting executors of the estate of William H. Porter, who died a resident of New York, November 30, 1926.
William H. Porter did, on or about October 18, 1918, transfer to the Bankers Trust Company, a corporation, as trustee under a trust agreement of that date, $100,000, principal amount, City of New York 4 1/2 per cent bonds. This trust, hereinafter referred to as "Trust No. 1," in part provided for the payment of the trust income to the decedent's daughter, Helen Porter Davisson, until she should reach the age of thirty years and, upon her reaching such age, the principal was to be paid to her. In the event of her death before attaining the age of thirty years, the principal was to be held in trust for the benefit of her son, Richard L. Davisson, Jr., until he reached the age of thirty years, at which time the principal was to be paid to him. Other provisions of this trust, effective on various contingencies, are unimportant in the instant case.
On or about February 1, 1919, the decedent transferred to said Bankers Trust Company, as trustee, under an*1801 agreement of that date, $100,000, principal amount, City of New York 4 1/2 per cent corporate stock. This trust instrument, hereinafter referred to as "Trust No. 2," provided for the payment of the trust income to decedent's daughter, Helen Porter Davisson, until she should reach the age of forty years, and upon her attaining such age, the principal was to be paid to her. In the event of her death before reaching the age of forty years, the principal was to be held in trust for the benefit of her said child, Richard L. Davisson, Jr., until he should *1018 reach the age of thirty years, at which time the principal was to be paid to him. Other provisions of this trust are not material in the instant case.
Both said trusts contained the following provision:
TENTH: Notwithstanding anything to the contrary herein contained, the Donor at any time during the continuance of the trust herein provided for may, by instrument in writing executed and acknowledged or proved by him in the manner required for a deed of real estate (so as to enable such deed to be recorded in the State of New York) delivered to the Trustee, or its successor, modify or alter in any manner this indenture, *1802 and any or all of the trusts then existing and the limitations and estates and interest in property hereby created and provided for subsequent to such trusts; and in case of such modification or alteration said instrument shall direct the revised disposition to be made of the trust fund or the income thereof, or that part of the trust fund or the income thereof affected by such modification or alteration, and upon the delivery of such instrument to the Trustee or its successor said instrument shall take effect according to its provisions, and the Trustee or its successors shall make and execute all such instruments, if any, and make such conveyance, transfers or deliveries of property as may be necessary or proper in order to carry the same into effect, and no one, born or unborn, shall have any right, interest, or estate under this indenture except subject to the proper modification or alteration thereof; but this power to modify or alter is not intended and shall not be construed to include the right to the Donor to make such modification or alteration in his own favor or in favor of his estate, but shall apply only so far as the interests of third parties may be concerned.
The*1803 trusts were not created in contemplation of death.
At the time of the creation of both the trusts, the decedent's daughter, Helen Porter Davisson, had only one child, Richard L. Davisson, Jr. Between the dates of the creation of the said trusts and November 27, 1926, two more children, Joan Davisson and William Porter Davisson, were born to said Helen Porter Davisson.
In order to provide for the newly born grandchildren, the decedent determined to exercise the power reserved to him in paragraph "Tenth" of the said two trust deeds and, with this purpose in view, he wrote two letters to the Bankers Trust Company the latter part of October, 1926, indicating his desire and determination.
On November 27, 1926, three days prior to his death, William H. Porter executed and delivered to the Bankers Trust Company simultaneously three instruments, one of which, addressed to the Bankers Trust Company as trustee, relative to Trust No. 1, provided:
Pursuant to the power reserved by me in the Tenth Article of the interests described Deed of Trust, I hereby revoke said Deed and terminate the interests of all persons therein, and I hereby direct you to deliver the principal thereof, all*1804 income on such principal accrued but not actually received, and all income thereon received but not yet distributed to the beneficiary, to yourselves as Trustee under a new Deed of Trust dated the same date as this letter and executed by me in favor of said Helen Porter Davisson and other beneficiaries, *1019 such principal to be held by you as principal of the new trust and such income, whether accrued or received, to be treated by you as you would have treated that income under the trust which I now revoke.
Very truly yours,
(Signed) WM. H. PORTER. (Seal)
STATE OF NEW YORK
COUNTY OF NEW YORK, SS:
On this 27th day of November, 1926, before me personally came WILLIAM H. PORTER, to me known to be the individual described in and who executed the foregoing Revocation and acknowledged to me that he executed the same.
(Signed) JAMES J. MCDERMOTT.
Another instrument of the same character, so executed and delivered, related to Trust No. 2.
Thereupon the said William H. Porter executed a new trust agreement conveying to the Banker's Trust Company as trustee the same securities as had theretofore been conveyed to the Banker's Trust Company as trustee in Trusts Nos. *1805 1 and 2, already described in our findings of fact. This new trust agreement, executed November 27, 1926, contained similar minute instrutions to the trustee as to the management of the funds entrusted to its care, disposition of income, investing and reinvesting the principal, and other like instructions, as was contained in Trusts Nos. 1 and 2. This trust agreement provided in part that Helen Porter Davisson should receive the income therefrom until she attained the age of forty years, at which time she was to receive the principal. In the event of her death before reaching that age, the principal was to be held in trust for the benefit of her surviving children and the issue of any deceased child per stirpes and not per capita, upon terms and conditions stated in the trust indenture.
This new trust agreement contained the same paragraph ten as was contained in Trusts Nos. 1 and 2, which has already been set out in full in these findings of fact.
The respondent included in decedent's gross estate the sum of $211,125 as representing the value, on the date of decedent's death, of the securities described in Trust No. 3 of November 27, 1926.
It was alleged in the*1806 petition and admitted by respondent in his answer that at the date decedent executed Trust No. 3, to wit, November 27, 1926, neither the decedent nor his physicians nor his family had any anticipation or expectation that his death would occur soon thereafter, and there was no reason to believe or anticipate that the decedent did not have many years of life ahead of him. From this we find that the decedent did not execute Trust No. 3 in contemplation of death.
On or about October 18, 1918, decedent transferred to Bankers Trust Company, as trustee, under trust indenture of that date, $100,000, principal amount, City of New York 4 1/2 per cent bonds. *1020 Under the terms of the trust, hereinafter referred to as Jamie Porter Trust No. 1, the income was directed to be paid to the decedent's son, James J. Porter, until he reached the age of thirty years, and thereupon to pay over the principal to him. In the event of the death of James J. Porter before attaining the age of thirty years, the trust was to continue for the benefit of his daughter, the decedent's grandchild, Jane Hetherington Porter, also known as Jamie Porter.
On or about June 27, 1919, the decedent transferred*1807 to the Bankers Trust Company, as trustee, under trust indenture of such date, $100,000, principal amount, City of New York 4 1/2 per cent corporate stock. Under the terms of the trust, hereinafter referred to as Jamie Porter Trust No. 2, the income was to be accumulated during the minority of the decedent's grandchild, Jane Hetherington Porter (Jamie Porter), and thereafter paid to her until she attained the age of thirty-five years, at which time the principal was to be paid to her. In the event of her death before she attained the age of thirty-five years, the trustee was directed to transfer and pay over the principal of the fund in equal shares to the children of said Jane Hetherington Porter and in default of children surviving, then to Helen Porter Davisson, daughter of the donor, and in case of her prior death, in equal shares to the children of said Helen Porter Davisson then living.
The same provisions by which the decedent reserved the right and power to modify or alter the Helen Porter Davisson Trusts Nos. 1, 2 and 3 are contained in the Jamie Porter Trusts Nos. 1 and 2.
At the date of the decedent's death, November 30, 1926, the value of the securities held under*1808 Helen Porter Davisson Trust No. 3 was $211,125 and the value of the securities held under Jamie Porter Trust No. 1 was $105,625, and under the Jamie Porter Trust No. 2 was $106,375.
On May 12, 1927, payment was made by the executors of decedent to the treasurer of the New North Country Community Hospital of Glen Cove, Long Island, of the sum of $6,000, being the balance of a written subscription or pledge of $12,000 made by decedent during his lifetime to said hospital. This subscription was made by decedent for the specific purpose of equipping an X-ray room in the hospital as a memorial to his son, who lost his life in the World War. During the decedent's lifetime, the construction of the hospital was undertaken and an X-ray room was provided therein in reliance on said promise of decedent.
On May 12, 1927, the executors of decedent's estate paid to Princeton University, Princeton, N.J., the sum of $5,000 as the balance of a subscription of $25,000 made by the decedent during his lifetime for the purpose of erecting in the University Chapel a bay, containing a memorial window in memory of decedent's son who lost *1021 his life in the World War. Princeton University, *1809 relying on decedent's said subscription, had prior to decedent's death contracted for and commenced construction of such bay and window.
The respondent disallowed the deductions claimed by petitioners on account of said subscriptions and payments.
The petitioners, at the hearing, withdrew their claim for deductions on account of other subscriptions of pledges, aggregating $2,205, made to Boy Scouts of Nassau County, Hampton Tuskegee Endowment Fund, Nassau Hospital Association, and Civic Forum of New York City, claimed in their petition.
Respondent's deficiency notice shows he allowed as a credit for State inheritance taxes, paid by petitioners, the sum of $226,815.16. Said notice should have stated the amount to be $226,855.16.
Within three years of the filing of petitioners' return they paid and claimed credit for $866,135.98, paid on account of New York estate tax on decedent's estate. On May 26, 1927, $300,000 was paid; on May 25, 1928, $450,000; on October 25, 1930, $83,402.42; and on November 12, 1930, $32,733.56. The total, $866,135.98, respondent has not allowed. Of such total, $833,402.42 was paid with respect to property included by the respondent as part of*1810 decedent's gross estate and $32,733.56 with respect to the value of the property included in the Jamie Porter Trusts Nos. 1 and 2, which the respondent alleged in his amended answer should be included as a part of decedent's gross estate, which assertion petitioners deny.
OPINION.
BLACK: The petitioners contend that the trust herein referred to as Trust No. 3, dated November 27, 1926, did not create any new trust nor revoke trusts designated herein as Trusts Nos. 1 and 2, and that, if it had any legal effect, it was merely to modify Trusts Nos. 1 and 2.
They further contend that if a new trust was created on November 27, 1926, by Trust No. 3, section 302(c) is unconstitutional in so far as it provides that transfers made within two years prior to death shall be deemed to have been made in contemplation of death.
They insist that the pledges made by the decedent to the New North Country Community Hospital and Princeton University are proper deductions as claims against the estate under section 303(a)(1) of the Revenue Act of 1926, or under section 303(a)(3) of said act, as transfers to or for the use of corporations organized and operated exclusively for charitable and educational*1811 purposes, and they claim full credit for the amount paid on account of New York estate tax.
*1022 The respondent disputes all the above contentions made by petitioners and insists that the property held by the Bankers Trust Company as trustee under Trust No. 3 was transferred by the decedent to said company after the enactment of the Revenue Act of 1926, without consideration, and within two years of the decedent's death. The respondent further insists that Trust No. 3 falls within the provisions of said section 302(c) and that the transfer of the property held in trust must be deemed and held to have been made in contemplation of death within the meaning of the Act.
In view of the fact that all the trust agreements, including the one executed November 27, 1926, referred to as Trust No. 3, contained paragraph "Tenth," which has been set out in full in our findings of fact, and in view of the further fact that we think said paragraph "Tenth" in these trust agreements brings them within the provisions of section 302(d) of the Revenue Act of 1926, we do not find it necessary to decide whether or not respondent correctly included the property described in Trust No. 3 as a*1812 part of decedent's estate under section 302(c), nor do we find it necessary to pass upon petitioners' assignment of error that section 302(c) is unconstitutional.
The respondent also insists that if the legal effect of Trust No. 3 was merely to modify or amend Trusts Nos. 1 and 2 and did not operate to effect a transfer of any property rights over which the decedent had the power of disposition, the entire value of the property held under Trusts Nos. 1 and 2, as amended by Trust No. 3, constituted a part of decedent's gross estate under the provisions of section 302(d).
The respondent further contends that the entire value of the property held under the Jamie Porter Trusts Nos. 1 and 2 should be included as a part of the decedent's gross estate under section 302(d) of the Revenue Act of 1926. Section 302(d) and (h) of the Revenue Act of 1926, read:
(d) 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, or where*1813 the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money's worth. * * *
* * *
(h) Except as otherwise specifically provided therein subdivisions (b), (c), (d), (e), (f) and (g) of this section shall apply to the transfers, trusts, estates, interests, rights, powers, and relinquishment of powers, as severally enumerated and described therein, whether made, created, arising, existing, exercised, or relinquished before or after the enactment of this Act.
By reading paragraph "Tenth," which was a part of each of the trust instruments involved in the instant case, it will be seen that the *1023 settlor reserved the right to himself to modify or alter the indentures. The only restrictions placed on this power was that the donor could not make himself or his estate the beneficiary. Outside of this limitation his power to alter or modify was unlimited. He went so far as to say in said paragraph "Tenth": "No one, born or unborn, shall have any right, interest, or estate under this indenture except subject to the proper modification or alteration thereof."*1814 And this power to alter or modify existed right up to the day of his death. It was again reserved by him in the trust agreement No. 3, which he executed three days before his death, November 27, 1926. It was a power outstanding when he died and only death extinguished it. Up until the very day of his death he might have completely changed the beneficiaries of the trusts. Their estates were only made secure when the hand of death extinguished the power.
, and the group of cases following it, cited by counsel for petitioner in their brief, it seems to us, have no application. Said cases concern a situation where the grantor of property in a deed or the settlor of a trust has made an irrevocable conveyance of the property or revocable only by and with the consent of adverse interests, subject only to a reservation to himself of a life estate. What the Supreme Court held in , and the group of cases following it, was that where there has been an irrevocable conveyance of the property with a reservation of the life estate to the grantor, nothing passes by his death when the life estate is extinguished. *1815 The title had already passed by the prior conveyance. It was to cure the effect of the decision of , that Congress on May 3, 1931, adopted a Joint Resolution amending section 302(c) of the Act of 1926, but this section 302(c), as amended by the Joint Resolution of May 3, 1931, has nothing whatever to do with section 302(d), as we view it. In the instant case the donor had not made an irrevocable conveyance of the property to the trustee reserving a life estate to himself, but, on the contrary, had expressly reserved to himself the right to alter and amend and modify the trust agreements.
We think that even without section 302(d) of the 1926 Act, under the principles of , and , the property conveyed by the trusts in the instant case should be included as a part of decedent's estate. But, if there should be any doubt about that, it seems to us it has been removed by Congress in the enactment of section 302(d) of the Revenue Act of 1926. *1816 , and , construed acts prior to the Revenue Act of 1926, which acts did not contain any section 302(d)(h). It seems to us that the aim of *1024 Congress, in inserting the provisions of subparagraph (d) of section 302, was to prevent an avoidance in whole or in part of the estate tax by a method of disposition which would enable the owner of property so long as he lived to control the future benefits and disposition of property as effectually as by will, and the provision under review is an adjunct of the general scheme of taxation of which it is a part entirely appropriate as a means to that end.
It therefore seems clear that under the plain language of section 302(d) of the Revenue Act of 1926, all the property conveyed by the trust instruments involved in the instant case must be included as a part of decedent's estate unless that clause in paragraph "Tenth" of the trust instruments, wherein the donor provided that in any alteration or modification of the trust instruments, he could not designate himself or his estate as the beneficiary, takes it out*1817 of the purview of the statute. We have, however, already decided that question adversely to petitioner in and . And if not in those two cases, certainly we have decided it adversely to petitioner in .
Counsel for petitioner cite in support of their contention . It must be admitted that that decision does support petitioner's position, but, as we endeavored to point out in ,, is contrary to what we conceive to be the plain language of the statute and the decisions of the Supreme Court in , and It seems to us that the discussion in , about the failure of the donor of the trust to reserve the right to confer upon himself or his estate the economic benefits of the property, is irrelevant. *1818 The estate tax levied by the Federal Government is a transfer tax.
In a case where the settlor of a trust has reserved the right to alter, modify or revoke the trust, substantial rights pass by reason of his death. Up to the very moment of his death, he has the right to exercise that power and the beneficiary of the trust may be ousted by the exercise of it. When the settlor dies that power is gone and that which up to that time was an insecure estate ripens into one which is completely vested. It is this transfer completed by death which the statute taxes and we think that the mere fact that the settlor has no power to make himself or his own estate the beneficiary has nothing to do with it.
On authority of ;;Loring A. Cover et al., supra;; and , we hold that the value of the property at the time *1025 of decedent's death, included in said trusts, should be included as a part of decedent's gross estate.
*1819 The claims for balances due from the decedent on subscriptions to the New North Country Hospital and to Princeton University for memorials therein, as set forth in our findings of fact, were valid and enforceable against decedent's executors. See ; ; ; ; ; ; 25 R.C.L. 1408.
In the case of , relied on by petitioners, we held that the consideration for the pledges was the payment by others of large amounts of money to the same institutions and that the consideration for each pledge was adequate and full and in money or money's worth, within the meaning of section 303(a)(1) of the Revenue Act of 1926.
In the instant case we have no such situation before us. In the absence of proof of the adequate and full value in money or money's worth of the memorials erected or contracted for, the claims for balance of decedent's subscriptions paid by the executors*1820 may not be allowed as a deduction from decedent's gross estate. .
Petitioners further contend that, "If for any reason it should be determined that these pledges were not deductible as 'claims against the estate' under Section 303(a)(1), they were proper deductions as 'transfers to charitable and educational corporations' under Section 303(a)(3)."
Section 303(a)(3) reads:
The amount of all bequests, legacies, devices, or transfers, to or for the use of the United States, any State, Territory, any political subdivision thereof, or the District of Columbia, for exclusively public purposes, or to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual, or to a trustee or trustees, or a fraternal society, order, or association operating under the lodge system, but only if such contributions or gifts are to be used by such trustee or trustees, *1821 or by such fraternal society, order, or association, exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals. The amount of the deduction under this paragraph for any transfer shall not exceed the value of the transferred property required to be included in the gross estate; * * *
In order for a transfer which has been made to a charitable or educational corporation to be deductible from the gross estate it must be proved that such institutions are operated exclusively for charitable or educational purposes and that no part of their net earnings inure to the benefit of any private stockholder or individual.
*1026 So, even though the amounts claimed by petitioners as a deduction under section 303(a)(3) come within the general provisions of that subparagraph (a matter which we do not now decide), we could not allow these amounts because we have no proof before us showing that the New North Country Community Hospital is operated exclusively for charitable purposes nor that Princeton University is operated exclusively for educational purposes and we have no proof showing that no part of the*1822 net earnings of these institutions inures to the benefit of any private stockholder or individual. This being the state of the evidence, petitioners' contention that these amounts be deducted from decedent's gross estate under the provisions of section 303(a)(3) is denied. ; ; .
The evidence shows that the petitioners have paid New York estate tax in the amount of $866,135.98 in addition to all other State estate and inheritance taxes which have been allowed as credits by the respondent, and that claims for the credit of such New York estate-tax payments were filed with the respondent within three years after the filing of the Federal estate-tax return. The sum of $833,402.42 of the above amount was paid with respect to property included by the respondent as a part of the decedent's gross estate and $32,733.56 with respect to property which was not so included, but which respondent in his amended answer alleged should be so included.
The petitioners having paid the sum of $866,135.98*1823 on account of the New York estate tax, in respect to property which we hold should be included in the gross estate of the decedent, are entitled, and we so adjudge, to full credit of same against the Federal estate tax determined in accordance with this opinion, to the extent it does not exceed the 80 per cent credit provided by section 301(b) of the Act.
Reviewed by the Board.
Decision will be entered under Rule 50.
SEAWELL, dissenting: I feel constrained to dissent from so much of the opinion of the Board as holds that the property embraced in the trusts mentioned should be included in the gross estate of the decedent.
The law here being applied provides for an estate tax on transfers of the net property of a decedent at the time of his death. (Section 301 of the Revenue Act of 1926.) The tax is not a succession tax, payable by the beneficiary, but a transfer tax payable at the hands of the personal representative of the deceased. (Sections 305(a) and 314(b).) The deceased did not own the property here sought *1027 to be included in his gross estate at the time of his death. He had conveyed it away by trust deeds without power*1824 to revest it in himself or in his estate.
In neither Trust No. 1, Trust No. 2, nor Trust No. 3 did the decedent reserve the power to revoke the trusts. The reservations were merely of the power to modify or alter; not to revoke. The power so reserved was limited to modifications or alterations not in favor of himself or his estate, but were to apply only so far as the interests of third parties were concerned.
The decedent, in the instruments of November 27, 1926, reciting revocation of the trusts, did not purport to act by virtue of any other right or power except that contained in paragraph "Tenth" set forth in the findings of fact. A new trust was not created; the funds did not change hands; other grandchildren, subsequently born, were merely provided for.
Under the New York law, which is here applicable, the donor of a trust alone can not revoke the trust unless the power of revocation is expressly reserved. ; affd., ; ; *1825 ; ; ; ; affd., ; .
Where no power of revocation is reserved, attempts by the donor to revoke are void. ; ; ; ; ; .
The trusts could not be revoked by the donor, one of the beneficiaries being a minor. .
At the time of the execution of the trusts in question, all economic benefits in the trust funds passed from the decedent, without any right or power reserved to revoke such trusts or to repossess any part or interest in the funds.
In cases decided by the United States Supreme Court and relied on by the respondent, where property has been included in the gross estate for Federal*1826 estate-tax purposes, the decedent had a legal right, direct or contingent, under which he, to the moment of his death, might acquire some economic benefits in the property concerned. In , the decedent shared with his wife the ownership and enjoyment of the property during his life and if the decedent had survived his spouse, he would have acquired the whole property. At his death there was a shifting of economic benefits from him to his wife.
*1028 In the case of , the decedent, by virtue of the power to change beneficiaries, could make the insurance policies payable to his estate for estate purposes, secure the cash surrender value of the policies, or borrow against the policies.
In , the donor could revest in himself the principal of the trust.
The Supreme Court has refused to include in decedent's gross estate property no interest in which passed from the decedent at death. *1827 ; ; and .
Upon the hearing and in respondent's brief, only slight contention was or is made that the trust funds should be included in the gross estate by reason of section 302(c) of the statute. Petitioner directly challenged the constitutionality of this section under the decision of the Supreme Court in . The evidence shows clearly that the instruments of November 27, 1926, were not made in contemplation of death. Respondent placed his principal reliance on section 302(d), which provides that there shall be included in the gross estate of every decedent at the time of his death all property: "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 * * *."
In the trust deeds involved here, power to*1828 amend and alter was reserved to the donor - the decedent; but this was not a general power, but a limited power as set out in the facts recited in the main opinion. Under the express limitation of the power, the decedent could not exercise it by deed or will, or otherwise, in favor of himself or his estate. The possessor of a general power of appointment has authority to dispose of the property at his death by will and his position is not unlike that of an owner, for he can make himself during life and his estate thereafter the beneficiary of the trust. An unlimited power to amend, alter or revoke a deed of trust is equivalent to a general power of disposition and a general power of disposition is the practical equivalent of a fee. ; ; Sugden, Powers, 8th ed., 396.
The failure to exercise this general power of appointment, in effect, results in a transfer from the donee's own estate (to which he has the power to give it) and a transfer to the estate of others who take because of his death and the failure to exercise the power during *1029 life in his own favor or*1829 in the favor of others. Property passing under such general power of appointment may be subject in the hands of the donee of the power to the claims of his creditors (); or to the claims of trustees in bankruptcy (); and may be included in the estate of the decedent for estate-tax purposes ( ). But under a special, naked or limited power of appointment, such as is here under consideration, the decedent could not have sold or assigned the power (). A failure to exercise such limited power can not result in any transfer of anything from the decedent, for there is no beneficial interest or estate in him to be transferred; his creditors have no claim upon his power of appointment nor can they levy execution or distraint against him while he lives, on such account, nor against his estate when he is dead; if he should become a bankrupt, no trustee in bankruptcy would have any claim against the trust funds; his interest in the trust fund being only such limited power of*1830 appointment, his estate possesses nothing of value in it to be included in the gross estate. Certainly, "to the extent of his interest therein" would not include the whole value of the property. ;;The Circuit Court of Appeals for the First Circuit, in the case of , had under consideration a trust identical with the trusts here involved, except the power to change and alter the trust and to name any other beneficiaries was limited in that case to beneficiaries other than the maker of the trust; whereas in the case before us the limitation of the power applies not only to the maker of the trusts, but his estate also. In the Brady v. Ham case, the court, by unanimous opinion, said that the decedent had expressly deprived herself of all economic benefits in the trust estate; that those benefits passed at the time of the execution of the declaration of trust, and such estate was not includable in the gross estate of the decedent, and that "To hold that such property was subject*1831 to a transfer tax would amount to what the Supreme Court had termed * * * an arbitrary and capricious exercise of legislative power."
Moreover, it is suggested that the part of section 302(d) added by the Revenue Acts of 1924 and 1926, and which is italicized in the above quotation, is ambiguous and susceptible of different interpretations and meanings. Do the words "any change" mean (1) a change however slight, or (2) a change without limitation? Webster defines the word "any" to mean: "Unlimited, and indefinite number, quantity or degree," as well as "some." Does the statute mean power to make some slight change, or unlimited power to make *1030 any change? One of the trusts herein provides that when Mrs. Davisson reaches the age of 30 years, the principal fund shall be paid to her. By way of illustration, if the sole power reserved had been to change the 30 years to 40 years, would that sole reserved power subject the trust funds to be included in the gross estate of the decedent at the time of his death? If the power to postpone to the beneficiary the enjoyment of the principal fund for ten years is power sufficient to make such change in the trust as will require*1832 the fund to be included in the decedent's gross estate, would not the power to postpone such enjoyment five years or one year or one month have the same effect? If "any change" means any slight change, even a power to cause a day's postponement, under the construction contended for, would seem to comply with the provisions of the statute. Such construction, it appears to me, would contain some of the elements of capriciousness condemned in several adjudicated cases. I prefer to think, as was held by the Circuit Court of Appeals for the First Circuit (), that Congress did not intend by section 302(d), to create a new form of excise tax, that is, a tax on the power in the grantor to alter or amend a trust executed by him when the power so reserved is limited as in this case. Cf. . To hold under the statute that W. H. Porter's estate should be taxed on the value of the property theretofore conveyed in trust, irrevocably, by him, and not owned by him, in whole or in part, and of which no beneficial interest remained in him at the time of his death, is to raise a serious doubt*1833 as to the constitutionality of the Act of Congress. To hold that by the power to make "any change" in the trust, Congress in the statute meant an unlimited power, to make "any change," or a power to make a change, such as would leave with the settlor power to revest the property in himself, is to adopt a more reasonable construction and to avoid the doubt as to the constitutionality of the Act. "A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score." .
SMITH agrees with this dissent.
MATTHEWS, dissenting: I dissent from the majority opinion in so far as it relates to the trusts. All the trusts in question (except the so-called Trust No. 3) were executed while the Revenue Act of 1918 was in force and none of the trusts was made in contemplation of death. The 1918 Act had no counterpart of subdivisions (d) and *1031 (h) of section 302 of the Revenue Act of 1926. The shifting in the economic interest in the trust property was complete as soon as the trusts were made. The donor parted with the legal title and*1834 all beneficial interest. He reserved no power to revoke the trusts, by which he could recall the trust property. The power reserved was to alter or amend in any manner in so far as the interests of third parties were concerned, but not in such manner as to be in his own favor or in favor of his estate. The alteration or amendment of Trusts Nos. 1 and 2 by the instrument designated Trust No. 3 did not have the effect of revesting the property in the donor and the retransfer of such property to the trustees. It was not, therefore, equivalent to the creation of a new trust.
It seems to me that these trusts are in all material respects similar to the five trusts which in Reinecke v. Northern Trust Co. were held not to be subject to the tax imposed by reason of the provisions of sections 401 and 402(c) of the Revenue Act of 1921. Section 402(c) of the Revenue Act of 1921 is identical to the same section of the Revenue Act of 1918. The trusts were not made in contemplation of death; the donor had divested himself of all economic interest in the trust property at the time he created the trusts; the power to alter or amend was not broad enough to revest in him or his estate*1835 any interest in the property, and there was no provision in the estate-tax act then in force taxing transfers in trust not made in contemplation of death, where the power to alter or amend is reserved. As Mr. Justice Stone said in :
* * * The shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax.
See also . As the transfers were nontaxable when made, they can not be subjected to tax by a later estate-tax act. They are in the same class as trusts made in contemplation of death before the 1916 estate-tax act was passed, by persons who died subsequent thereto, and with gifts made in 1924 before the gift-tax act was enacted. The Supreme Court has held that such trusts and gifts can not be subjected to the tax. See *1836 ; ; ; , and . I think the transfers by the trusts here in question are not subject to the tax imposed by sections 301 and 302(d) and (h) of the Revenue Act of 1926.