*2843 The transfers involved herein were not made in contemplation of death, and the value of the property transferred should not be included in the gross estate of the decedent subject to the Federal estate tax.
*470 This proceeding is for the redetermination of a deficiency in estate tax asserted by the respondent in the amount of $23,107.90. The petitioners allege that the respondent erred in including in the gross estate of the decedent, subject to the Federal estate tax, the value of certain shares of the capital stock of White Brothers, a corporation, which the decedent transferred to his son, his daughter, and his nephew on or about May 31, 1922. The respondent in his answer denies that he erred in including the value of said shares of stock in the gross estate of the decedent, and he affirmatively alleges that there should also be included in the gross estate the amount of $12,000 which the decedent transferred in trust for the benefit of his grandson in July, 1923, and asks that the deficiency in tax be increased to $24,067.90.
FINDINGS*2844 OF FACT.
The petitioners are the duly appointed, qualified and acting executors of the last will and testament of Asa L. White, who died December 6, 1923, a resident of the State of California.
In the year 1872 Asa L. White and his brother, Peter White, established a lumber business which was conducted as a partnership *471 under the firm name and style of White Brothers. The business was incorporated in 1892. Peter White withdrew from the business prior to 1905. In the year 1905 Asa L. White, who was then the owner of all of the capital stock of White Brothers, associated with himself in the conduct and management of the business, his son, W. T. White, and his nephew, C. H. White, and sold to each of them 23 per cent of the outstanding capital stock of the corporation, permitting them to pay for the stock out of dividends which were paid thereon. During the years subsequent to 1905, Asa L. White gradually shifted the responsibility and management of the corporation from himself to his son and his nephew.
Early in the year 1922, Asa L. White discussed with one Frederic K. McFarlan, his friend and auditor of White Brothers, the fact that he was about to make a gift*2845 of his remaining stockholdings in said corporation to his son, his daughter, and his nephew. On May 31, 1922, he announced to his son and his nephew that he had decided to transfer all of his shares of the capital stock of White Brothers, excepting ten shares, in equal portions to them and to his daughter, Florence W. Faitoute, and on that day he transferred to his son, his daughter, and his nephew, in equal amounts, 804 shares of the capital stock of White Brothers, retaining ten shares. The value of the 804 shares so transferred was $318,384. Asa L. White stated at the time that he was making these transfers because: (1) His nephew and his son had been sucessfully running the business for several years; (2) he desired from that date to devote a greater portion of his time to his ranch at Los Gatos, Calif.; (3) he had completed 50 years of connection with White Brothers; and (4) he desired to reduce his income-tax liability. He further stated that is purpose in giving his daughter a portion of said stock was to avoid any jealousy on her part on account of the transfer to her brother, W. T. White. The decedent, after making said transfer of stock, continued as president of White*2846 Brothers, but received only a nominal salary and gave but little time and attention to the business, devoting himself chiefly to his ranch at Los Gatos.
On July 31, 1923, Asa L. White transferred and set over to C. H. White and William T. White, $12,000 in trust for his grandson, William T. White, Jr., the son of W. T. White. The trust instrument is in the words and figures following, to wit:
I, Asa L. White, of the City of Oakland, County of Alameda, State of California, hereby assign, transfer and set over unto C. H. WHITE and WILLIAM T. WHITE, the sum of twelve thousand (12,000) dollars, in trust, however, for the following uses and purposes:
To invest and reinvest said sum during the period hereinafter mentioned in such securities as my said trustees may deem proper, and to pay monthly on the first day of each and every month, beginning on the first day of August, 1923, during the period hereinafter mentioned, the sum of one hundred (100) *472 dollars for the support and education of my grandson, WILLIAM T. WHITE, JR. Said sums shall be so paid monthly during the period of ten years from and after the first day of August, 1923. Said sums shall be paid to KATHERINE*2847 BROWN WHITE, as guardian of such child. At the end of every twelve months from and after the first day of August, 1923, my said trustees shall, in addition to the payments of said sums of one hundred (100) dollars, pay to said Katherine Brown White, as guardian of WILLIAM T. WHITE, JR., all dividends, interest or earnings that may have accrued or have been derived from the investment of said sum of twelve thousand (12,000) dollars, or the residue of said sum in the hands of my said trustees, during the prior period of twelve months.
My said trustees shall be the sole and exclusive judges of the kind and character of investments which shall, at all times, be made of said sum of twelve thousand (12,000) dollars, or the residue thereof in their hands at any time. My said trustees are hereby given full power and authority to invest, re-invest, sell, or in any manner convert said sum of twelve thousand (12,000) dollars or any part thereof, from one form of security into any other form of security or investment.
If said WILLIAM T. WHITE, JR., should die during the life of this trust, then and in that event, this trust shall cease and terminate, and the residue of said trust then*2848 in the hands of my said trustees shall immediately go to and vest in said KATHERINE BROWN WHITE, absolutely.
If either of my said trustees should die, or otherwise become incapable of executing this trust, the remaining trustee shall proceed to complete the execution of this trust.
This trust shall not be terminated in any manner except as hereinbefore provided, and neither all nor any of the parties hereto, shall by any agreement or otherwise, destroy or render inoperative this trust.
If this trust, or any of its provisions, for any reason, should be adjudged or decreed void, uncertain, inoperative, or unlawful, then said trust shall be enforced as far as possible, but if it is declared void, inoperative, uncertain, or unlawful in whole, then upon such termination thereof, by judgment or decree of a court of competent jurisdiction, the residue thereof then in the hands of my trustees shall thereupon go to and vest in my heirs by right of representation. sentation.
No bonds of any kind shall be required of my said trustees or either of them
WHEREAS, by agreement in writing dated the nineteenth day of December, 1921, said KATHERINE BROWN WHITE, therein called KATHERINE*2849 B. WHITE, and said WILLIAM T. WHITE, therein called WILLIAM THORNTON WHITE, among other things, agreed as follows:
It is mutually agreed by and between the parties hereto that said party of the first part will, no the first day of each and every month from and after the date of this agreement and until said child shall have arrived at the age of fourteen years, pay to the party of the second part the sum of seventy-five (75) dollars per month in advance for the support, education and maintenance of said minor child, William Thornton White, Jr., And said party of the first part further agrees that in addition to said sum of seventy-five (75) dollars per month that he will pay all extraordinary, unusual and necessary expenses that may be incurred by said second party for, or on account of, said minor child, such as doctor bills, dentist bills, hospital bills, etc., if any; and said first party further agrees that in the event said second party remarries prior to the arrival of said William Thornton White, Jr., at the age of fourteen years, that first party will pay to said second party for the *473 support, maintenance and education of said minor child on the first day of each*2850 and every month as herein provided, the sum of one hundred dollars per month until said child shall have arrived at the age of fourteen years; said first party further agrees that from and after the date when said minor shall have arrived at the age of fourteen years, that he, the said first party, will pay to the second party, all sums necessary for the support, maintenance, and education of said minor child, including extraordinary expenses as hereinbefore set forth, as well as necessary railroad fare, in the event that said minor shall attend school at a distance from the City of Oakland, County of Alameda, State of California, until such time as said minor child shall have completed his education and taken his place in the business world.
In said agreement said William T. White is the party of the first part, said Katherine Brown White is the party of the second part, and said minor child, William T. White, Jr., the child of said parties.
This trust is made subject to said KATHERINE BROWN WHITE executing in writing her waiver of all rights and benefits under that part of the above agreement herein above set forth, except as to that part providing for the extraordinary expenses*2851 to be paid by said William Thornton White. Upon the execution of such waiver, this trust shall become operative and in full force, otherwise that trust is to be of no force or effect whatever and said sum of twelve thousand ($12,000) dollars is to belong to my said estate. All of the foregoing clauses relative to the termination of this trust are hereby made conditional upon the execution of the above mentioned waiver.
In witness whereof I have hereunto set my hand and set my hand and seal this 31st day of July, 1923.
ASA L. WHITE
WITNESS:
W. UPTON.We and each of us hereby accept the above trust.
C. H. WHITE W. T. WHITEI, KATHERINE BROWN WHITE, hereby waive all rights and benefits under the agreement made between me and William T. White on the 19th day of December, 1921, in so far only as they are affected by that part of said agreement which is set forth in this trust agreement. I hereby elect to accept the benefits of this trust, in lieu of said agreement as above set forth.
It witness whereof I have hereunto set my hand and seal this 31st day of July, 1923.
KATHERINE BROWN WHITE.
Witness:
W. UPTON.Asa L. White was 81 years and 7 months of*2852 age at the time of his death. About the year 1910 he developed bronchitis of the asthmatic type, which became chronic. The disease was progressive and the decedent experienced a gradually increasing difficulty in breathing and in physical exertion. The decedent's wife died on November 30, 1921, and thereafter he seemed to fail in health more rapidly than he had done previously. Some time after his wife's death the decedent was found to be tubercular, with accompanying dilation of the heart associated with myocarditis. The cause of his death *474 was pulmonary tuberculosis and chronic myocarditis. The decedent was aware of his heart condition and his bronchitis, and knew that the latter disease could not be cured. His physician never informed him that he had tuberculosis. The decedent was active for one of his years. During the summer of 1922 he visited the ranch of his nephew, walked all around the five acres comprising it, and exhibited great interest in the place. After his practical retirement from the business of White Brothers in 1922 the decedent looked after his ranch and took a dominant part in its management. He visited the office of White Brothers from time*2853 to time, and was interested in the progress and condition of the business. He was apparently in as good health then as he had been for several years, and to some persons who did not know his age he appeared to be much younger than he really was. In the summer of 1922 the decedent contemplated an automobile trip to his boyhood home in New Brunswick, Canada. He gave no outward manifestation that he expected to die soon.
The respondent, upon audit of the estate-tax return filed on behalf of the said decedent, included in the gross estate of the decedent the amount of $318,384, representing the value of the 804 shares of the capital stock of White Brothers transferred by the decedent to his son, his daughter, and his nephew on May 31, 1922, and determined a deficiency in tax in the amount of $23,107.90.
OPINION.
MARQUETTE: There is but one question involved here, namely: Were the gifts of corporate stock by decedent to his son, his nephew and his daughter in May, 1922, and the trust fund established by him in July, 1923, for the benefit of his grandson, made in contemplation of death within the meaning of the statute? Inasmuch as these transfers were made less than two years*2854 before the decedent's death, the presumption is that he made them in contemplation of death. Section 402(c) of the Revenue Act of 1921. But this presumption is not conclusive. However, the burden is upon the petitioners to rebut it.
The term "in contemplation of death," within the meaning of the statute, calls for something more than the knowledge that death will come at some time, and the reflection which might naturally accompany that thought from time to time.
; ; ; ; ; ; ; ; .
*475 In our opinion, the decedent did not act in contemplation of death with respect to the gifts of stock and the trust fund for his grandson. The evidence shows that he was active, for one of his years, at*2855 and after the dates when these transactions were effected. He exhibited a lively interest in the affairs of his ranch, in the business he had so long conducted, in the news of the day, and in the current affairs of his friends and associates. Undoubtedly he knew that, compared to the number of years he had already lived, his remaining span of life was short. He was aware that his bronchitis of some years' standing could not be cured, and he knew he had trouble in breathing after undue exertion. But that condition was not one which, apparently, gave him any alarm. And the evidence clearly shows that he had, and expressed, good and sufficient reasons, other than the contemplation of death, for making the transfers in question. We think that the reasons so held and expressed by him were the proximate motives which impelled his action. Certainly the evidence negatives the idea that contemplation of death was the motive without which the transfers would not have been made.
The tax should be recomputed, omitting from the gross estate the value of the 804 shares of stock given by the decedent to his son, his daughter, and his nephew, on or about May 31, 1922, and the $12,000 which*2856 constituted the trust fund for decedent's grandson.
Reviewed by the Board.
Judgment will be entered under Rule 50.