*902 Decedent, in 1909, agreed with his wife that upon his death their daughter should receive one-half of all property of which he died possessed. Decedent received as consideration from his wife release of all her marital rights and dower rights in his property. The agreement provided elsewhere for contribution by decedent to the support of his wife and daughter. The agreement was approved in a final decree of divorce. Decedent did not bequeath to his daughter by his last will one-half of his property, but made bequest to her of his residuary estate, which was not in lieu of or in conflict with the agreement of 1909. The daughter sued for specific performance of the agreement made in 1909 and received one-half of the property of decedent as of the date of his death by order of the Probate Court. Held, no property was transferred to the daughter in 1909; upon failure of decedent to bequeath by will one-half of his property to the daughter she had a claim against the estate but the claim was not one for consideration in money's worth, under section 805 of the Revenue Act of 1932, section 804 being applicable, relinquishment of marital rights in decedent's property not according*903 consideration under the statute.
*66 The petitioner appeals from the determination by the respondent of a deficiency in estate tax in the amount of $25,195.42. It is alleged that respondent erred in computing the value of the estate of decedent at an amount including the value of certain property distributed to petitioner's daughter under order of the Milwaukee County Court in probate after the death of Louis D. Markwell.
FINDINGS OF FACT.
Louis D. Markwell died, testate, on October 15, 1935, a resident of the State of Wisconsin. B. J. Birk is the executor of the estate of Louis D. Markwell. Louis D. Markwell was survived by his former wife, Sophie B. Cohen, and his daughter, Ruth Markwell Birk, who is his sole heir at law. At the time of decedent's death, Ruth Markwell Birk was 34 years of age and was married.
In 1909 Louis D. Markwell and his wife, Sophie B. Markwell, Ruth Birk's mother, contemplated a divorce from each other and an action for divorce was instituted. On September 16, 1909, pending the divorce*904 proceeding, Louis D. Markwell and Sophie B. Markwell entered into a written agreement that was later submitted to the court, in the divorce action, and approved by it as part of its interlocutory judgment of divorce entered October 11, 1909. Ruth Markwell Birk was the sole issue of that marriage and in the interlocutory judgment of divorce, the care and custody of Ruth was awarded to her mother, Sophie B. Markwell, subject to provisions in the agreement of September 16, 1909, not material here. In the interlocutory judgment of divorce, made final, October 12, 1910, it was provided as follows:
2. That a final division and distribution of the estate, real and personal, of the said defendant [Louis D. Markwell] and so much of the estate of the plaintiff [Sophie B. Markwell] as has been derived from said defendant, be and the same is hereby made between the parties pursuant and according to the agreement in writing, dated the 16th day of September, 1909, executed by them, and referred to in said Findings [of the decree of divorce].
*67 The final judgment, also, provided for a final division and distribution of the estate of the parties pursuant and according to the*905 agreement of September 16, 1909, in accordance with the interlocutory judgment.
The September 16, 1909, agreement provided, as far as material here, that Louis D. Markwell would do the following, all of which he did: (1) pay in cash to Sophie B. Markwell, $15,000; (2) transfer to the Milwaukee Trust Co. in trust, for the use and benefit of Sophie B. and Ruth Markwell, $15,000 par value bonds and securities designated in the agreement; (3) pay to the Milwaukee Trust Co. semiannually during the life of the trust, "such an amount as with the sums provided to be paid from the income of said trust fund shall amount to the sum of $750 per annum"; (4) execute and deliver to Sophie B. Markwell a bond to pay her from the date of the entry of the interlocutory judgment in semiannual installments in advance, as long as she remained unmarried, $200 per annum; (5) to pay to Sophie B. Markwell $500 for costs and fees in the divorce action; (6) divide equally with Sophie B. Markwell the household furniture, etc., in the house then occupied by the parties.
By the terms of the agreement of September 16, 1909, a trust was to be created of $15,000 par value securities conveyed to the trustee and*906 the trust income was to be paid, one-third to Sophie B. Markwell for her own use for life and two-thirds to Sophie B. Markwell for the support of Ruth as long as she remained unmarried and remained with her mother, or until she became 21 years old. When Ruth became 21 years of age, or married, or ceased to reside with her mother, the two-thirds of the trust income was to be paid direct to Ruth. When Ruth became 35 years of age, two-thirds of the trust principal was to be paid to her. Upon the death of Sophie B. Markwell, all the trust income was to be paid to Ruth and the remaining one-third of the trust principal was to be paid to her "(after the death of her mother)" and upon her reaching the age of 35 years.
The September 16, 1909, agreement provided, also, immediately after the above provisions as follows:
The delivery of said bonds and securities amounting to fifteen thousand dollars ($15,000) to the said Milwaukee Trust Company, the payment of said sum of fifteen thousand dollars ($15,000) in cash to the said Sophie B. Markwell, and the agreement of said Louis D. Markwell to pay the sums of money and divide the furniture as hereinbefore provided shall be treated and considered*907 as, and shall be, a final division and distribution of the estate, real and personal, of the said Louis D. Markwell, and the interlocutory judgment and judgment to be entered in said action shall so provide.
* * *
The final paragraph of the agreement provides as follows:
The said Louis D. Markwell, as an additional consideration for the making of this agreement, does hereby agree that the said Ruth shall receive at his death *68 at least one-half of all the property of every description of which he shall die seized, possessed or in any wise entitled (the said sum of fifteen thousand dollars ($15,000) herein provided to be paid in bonds and securities to said Trust Company to be for the purpose of such division treated as part of his estate and applied in payment of the half thereof to be paid to said Ruth), and that he will not by any act intentionally diminish substantially the amount which would otherwise come to said Ruth at his death under this agreement. This provision as to the receipt of property by said Ruth at the death of said Louis is conditioned and dependent upon the full and faithful compliance by said Sophie and said Ruth with the provisions of this agreement*908 relative to the care and custody of said Ruth by said Louis.
All provisions of the agreement were faithfully performed by Sophie and Ruth Markwell relating to the care, custody, and education of Ruth, and Louis D. Markwell performed his duties under the agreement.
Louis D. Markwell in his will did not refer to any agreement made by him in 1909. He directed in his last will and testament, executed December 1, 1925, that all his residuary estate should go to trustees in trust for the benefit of Ruth until the death of Ruth's mother, during which period intervening, if any, the trustees were to pay Ruth $300 per month; and he directed the trustees to transfer the principal and interest of the trust fund to Ruth absolutely after the death of her mother, with certain remainders, not material, in the event of the death of Ruth without surviving issue.
The decedent's estate was appraised, by the appraisers appointed by the County Court of Milwaukee County, Wisconsin, sitting in probate, at $291,441.72. On January 31, 1936, Ruth M. Birk filed a claim and petition for specific performance of the obligation of the deceased by virtue of the agreement of 1909 and asked that specific*909 performance be decreed and that the property of the deceased be transferred to her to the extent provided in that agreement. The petition also asked the court to decree that the bequest accruing to the benefit of Ruth M. Birk contained in decedent's will, paragraph 10, was not in lieu or satisfaction of the claim for specific performance of the terms of the 1909 agreement. Objection was made to the filing and allowance of this claim on behalf of the estate and by Raymond H. Kleis as guardian ad litem. After hearing, the court entered its order and findings under date of May 18, 1936. It was found, among other things, that all the provisions contained in the agreement of September 16, 1909, relating to the care, custody, and education of Ruth M. Birk had been duly carried out by the claimant and her mother, Sophie B. Cohen; that there was no similarity of amount or nature between the provisions contained in the will for the benefit of Ruth M. Birk and the amount to which she was entitled under the agreement of September 16, 1909, and the provisions of the will were not in satisfaction of said agreement; and that the amount the claimant was entitled to *69 receive "from the*910 estate as at the time of death of the testator" was $138,220.86. The court concluded that $138,220.86 should be paid to Ruth M. Birk "as at the time of the death of the testator out of the estate in property owned by the deceased at the time of his death, or partly in such property and partly in cash, at the option of the claimant."
The agreement made by decedent in 1909 that his daughter Ruth should receive at his death at least one-half of property of which he should die seized was not made in consideration of any relinquishment by Ruth of any claims against decedent, her father, for support and maintenance. Other provisions in the agreement covered and took care of the support of Ruth during her minority. No consideration was given by Ruth for decedent's agreement regarding the amount of property to go to her upon his death.
In filing the Federal income tax returns, the executor, petitioner here, claimed a deduction in the amount of $138,220.86 by reason of the payment of that sum to Ruth M. Birk as a claim against the estate allowed in probate. The Commissioner disallowed the deduction, thereby determining a deficiency in estate taxes of $25,195.42, subject to credit for*911 taxes paid upon proof of state inheritance taxes paid.
OPINION.
HARRON: Petitioner contends that property rights vested in Ruth M. Birk in 1909, transferring property of decedent to her as of that date. Petitioner argues that the estate tax law is not applicable therefore to property received by Ruth M. Birk after decedent's death upon the theory that no estate tax may be levied upon transfers of property made prior to the enactment of Federal estate tax laws. In the alternative, petitioner contends that section 804 of the Revenue Act of 1932, defining the term "money or money's worth" in section 303 of the Revenue Act of 1926 as amended, is not applicable and that petitioner is entitled to deduct the amount of a claim awarded to Ruth M. Birk and paid to her under section 303. Petitioner contends that the claim was founded on an agreement for adequate consideration in money or money's worth.
We find little merit in petitioner's first contention. The agreement in 1909 was only that decedent's daughter should receive, upon his death, at least one-half of all property of which decedent should die seized. In 1909 it was not possible to ascertain what that property would be*912 and no property was described or defined in the agreement. The promise was contingent upon compliance with other provisions in the agreement by the other parties and upon decedent's owning any property at his death. It is not material that decedent agreed, also, that he would not intentionally diminish substantially the amount of *70 property that otherwise would go to his daughter at his death. This was no more than a promise not to defeat or nullify the main promise, i.e., not to disinherit at law his daughter by conveying title to property to others. Unquestionably decedent retained full title to all property he owned or acquired after 1909 until his death. On the other hand, if he died possessed of no property through no fault of his own or deliverate scheme to prevent property passing to his daughter, she would receive nothing. During decedent's life, the daughter had no present right to receive any property. Her right to receive property accrued at the death of decedent and not before. It is concluded that no property passed to Ruth M. Birk in 1909. There is no question in this proceeding as to the application of the Federal estate tax laws. They clearly apply*913 to decedent's estate.
The agreement made in 1909 was essentially testamentary in nature. The agreement that Ruth should receive one-half of decedent's property upon his death could have been carried out by devise by will of Louis D. Markwell. He made a will but did not include in it a bequest directly to Ruth of one-half of his property. Having so failed to provide, decedent did not comply with the agreement made in his lifetime. The obligation to so provide for Ruth was a contractual obligation, and in consideration therefor the mother of Ruth relinquished all marital claims she had in the property of Louis D. Markwell. She relinquished her dower rights and decedent acquired rights he would not have had otherwise. That was the only consideration material here; at least, Ruth, not a party to the contract but a third party beneficiary, did not give any separate consideration. At the time decedent died he was not indebted to Ruth in any way. Clearly, then, Ruth had a claim against decedent's estate arising out of a breach of contract. She sued for specific performance after decedent's death. The Milwaukee County Court in probate recognized the claim and directed satisfaction*914 either by distribution of property or by payment in cash, at the claimant's option. It is concluded that, after decedent's death, Ruth M. Birk had a claim against the estate which she acted upon by way of a suit for specific performance. We are satisfied that the claim was against the estate within the meaning of the term "claim" as used in section 805, recognizing the distinction to be made between a claim to a distributive share in an estate and a claim against an estate, as pointed out in . The distinction between that case and this proceeding is that, here, the claimant brought a suit on a contractual right where the contract obligation was not carried out. We think that, here, Ruth M. Birk's claim was adverse to the estate.
This brings us to the main question, whether the claim is such claim as Congress has allowed to be deducted from gross estate. It has *71 been decided that the enactment of section 804 in the Revenue Act of 1932, set forth below, 1 operated only to define by limiting the term "money or money's worth" already in the statute in section 303(a)(1) of the Revenue Act of 1926 as amended by*915 section 805 of the Revenue Act of 1932. 2. Under that decision, unquestionably, the amendments enacted in the Revenue Act of 1932 apply to decedent's estate, decedent having died subsequent thereto. It follows that the claim of Ruth M. Birk against decedent's estate was not one for which there was consideration in "money or money's worth" within the intendment of the statute. It is held that the claim was not deductible and respondent is sustained.
*916 The cases of ; ; , and related cases, relied upon by petitioner, are plainly distinguishable. In those cases there were irrevocable transfers of property antedating the statutes and it was held by the Court that the estate tax statutes could not be applied retroactively. The cases of , and , are also distinguishable. In those cases section 804 of the Revenue Act of 1932 was held not to be controlling. In each of those cases the child of the decedent was a minor at the date of his death, and part of the consideration for transfer of property was release of the legal obligation of decedent to support his child. The right of the wife and child was of value and so was the discharge of the obligation, and claims against the estate were held deductible. Here, Ruth M. Birk had attained her majority at the date of her father's death and all his legal obligation to support her had since terminated.
he deficiency*917 should be reduced by giving credit for state taxes paid upon recomputation undefr Rule 50.
Decision will be entered under Rule 50.
Footnotes
1. SEC. 804. RELINGUISHMENT OF DOWER, ETC., AS CONSIDERATION.
Section 303(d) of the Revenue Act of 1926 is amended by adding at the end thereof a new sentence to read as follows:
"For the purposes of this title, a relinquishment or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent's property or estate, shall not be considered to any extent a consideration 'in money or money's worth'." ↩
2. SEC. 805. DEDUCTIONS.
Section 303(a)(1) of the Revenue Act of 1926, as amended, is amended to read as follows:
"(1) Such amounts -
"(A) for funeral expenses,
"(B) for administration expenses,
"(C) for claims against the estate,
* * *
* * * The deduction herein allowed in the case of claims against the estate, unpaid mortgages, or any indebtedness shall, when founded upon a promise or agreement, be limited to the extent that they were contracted bona fide and for an adequate and full consideration in money or money's worth. * * * ↩