*106 Decision will be entered for the respondent.
1. Several years prior to decedent's death a partnership, of which he was a member, took out policies of insurance in the aggregate amount of $ 200,000 on the joint lives of decedent and one of his partners. The partnership paid the premiums and was named as beneficiary in all of the policies. Prior to decedent's death the partners agreed that the proceeds should constitute a part of the assets of the co-partnership and be applied to liquidate any indebtedness which might be owing by it. Following decedent's death the proceeds were paid to a partnership creditor. In the estate tax return the executrix eliminated, from the value of decedent's interest in the partnership a portion of the proceeds of the insurance policies, included the same amount in the schedule covering insurance, and claimed an exclusion of $ 40,000 under section 811 (g) of the Internal Revenue Code. Respondent included the value of decedent's interest in the partnership in gross estate and determined that no part of the insurance proceeds should be included therein as insurance subject to the $ 40,000 exclusion. Held, respondent's action was proper.
2. Fair*107 market value of decedent's interest in the partnership held to include the fair market value of certain stocks, the latter being the mean between the high and low quotations.
3. Decedent and two others were jointly and severally liable on a note. Each co-maker was financially able to pay the entire obligation. Prior to decedent's death one of the co-makers paid one-third of the note, decedent paid all of his one-third except $ 868.10, and the other co-maker paid nothing. Claim for the entire unpaid balance was filed against decedent's estate, approved by the Probate Court, and deducted in the estate tax return as a claim against the estate. Held, respondent did not err in limiting the deduction to $ 868.10.
*333 This proceeding involves a deficiency in estate tax in the amount of $ 5,036.57. No controversy exists as to the facts. Some of the adjustments made by the respondent are not questioned.
Stated generally the questions are: (1) Did petitioner correctly include in schedule D of the estate tax return a portion of *108 the proceeds of insurance collected by a partnership of which decedent was a member at the time of his death and exclude therefrom $ 40,000 under section 811 (g) of the Internal Revenue Code? (2) Did the respondent err in adding to the value of decedent's interest in a partnership, an additional amount computed by appraising certain stocks at the mean of the high and low of the market quotations on the date of death? (3) Did the respondent err in disallowing as a deduction from gross estate a portion of the amount claimed as a debt of the decedent?
FINDINGS OF FACT.
George Herbert Atkins, sometimes hereinafter referred to as the decedent, died September 2, 1939, a resident of the State of California. His widow, Laura Stouder Atkins, sometimes hereinafter referred to as decedent's wife or widow, is the duly qualified executrix of his last will and testament and she resides at Berkeley, California.
Estate tax return was filed with the collector of internal revenue for the first district of California on November 28, 1940, and the tax shown to be due was paid.
At the time of his death decedent was a member of the partnership of Atkins, Kroll & Co. The other members of the partnership*109 were *334 Clifton H. Kroll, David Atkins, and John B. Mackinlay. The partnership was originally established by articles of partnership dated May 23, 1921. This agreement, in addition to the usual provisions contained in partnership articles, contained a provision with reference to the liquidation of a partner's interest upon his death. Stated generally the proviso was that in the event of the death of one of the partners, an inventory of the partnership business would be taken without unnecessary delay and an appraisement made by a competent person designated by the surviving partners but at the expense of the estate of the deceased partner. Office fixtures and equipment were to be appraised at not less than 75 percent of the book value, but no values previously written off by mutual consent from the book value of ships or other property owned by the partnership was to be reinstated unless by the unanimous consent of the surviving partners. Merchandise was to be taken at its actual value but not to exceed original cost, all solvent credits at their fair value but not less than 50 percent of their face value, and "all investments such as stocks and bonds at fair market value." *110 Good will was to be appraised at the sum of $ 3.
The agreement further provided that the amount ascertained and determined to be due on account of a deceased partner's interest should "be paid to the heirs or legal representatives of the deceased co-partner in twenty (20) successive and equal annual instalments, commencing within one year from the time the amount due is ascertained and determined, for the amount of which instalments the surviving partners shall execute and deliver to the legal heirs or such representatives their promissory notes payable as aforesaid, with interest at six per cent per annum, secured by endorsement of the co-partnership only."
The surviving partners were to have the option of making payment in cash or of anticipating the maturity of the notes. Interest at 6 percent per annum was to be paid to the heirs or legal representatives of the deceased co-partner from the date of death, payable quarterly and adjusted to conform to the appraised value of the deceased co-partner's share upon ascertainment. This interest was to cease from the date of delivery and execution of the notes. The surviving partners and their successors were to have the right and privilege*111 of continuing the business under the name and style of Atkins, Kroll & Co., and the good will of the business was to pass to the surviving partners.
Under date of July 1, 1927, another partnership agreement was entered into between Kroll and David Atkins, as first parties, decedent, as second party, and John B. Mackinlay, as third party, it providing for the entry into the partnership of Mackinlay and for the sale of a portion of decedent's interest to him for that purpose.
*335 Under date of May 29, 1934, an agreement was entered into between the four partners mentioned in the preceding paragraph and their respective wives. It refers to the preceding agreements and amends them in certain particulars. One of the amendments consisted of the addition of an article reading as follows:
(1) Any Life Insurance now or hereafter carried by this firm on the life of any one or more of the partners, the premiums for which are paid by or charged to this firm, and in which this firm is named as the beneficiary shall, upon the decease of any partner or partners, be paid to the surviving partner or partners and not to the estate of the said deceased partner or partners and all of same shall*112 constitute a part of the assets of the co-partnership; the proceeds of such policy or policies shall be applied by the surviving partner or partners to liquidate any indebtedness which may be owing by the partnership.
Another article which was then added provided that in the event of dissolution of the partnership through the death of one or more partners, the surviors might, if a majority desired to do so, organize a corporation and transfer to it all of the assets of the partnership upon the assumption by the corporation of all of the partnership obligations. In the event such a corporation should be organized then --
* * * the liquidation of the share of any deceased partner * * * shall be deemed to be fully satisfied and discharged by the delivery to the heirs entitled thereto of certificates of stock in said corporation, which shall represent the same share in the properties and assets thereof as the said deceased partner owned in this co-partnership at the time of his death; the stock to be delivered to the deceased partner's heirs shall be non-cumulative preferred stock, bearing interest at the rate of 5% p. a., if earned, on its par value, to share pro rata with the common*113 stock of the corporation in any liquidation of assets and to be non-callable and without voting rights.
The agreement also provided that if any holder of any stock in the corporation should desire to sell it, he must first offer it for sale to the directors of the corporation. This limitation was to be incorported into the bylaws and articles of the corporation.
In the event of the dissolution of the partnership through the death of a partner then holding the largest amount of capital in it and the organization of a corporation as provided for therein, then if the heirs of such deceased partner should require cash, the corporation would purchase, on request, within seven months after the death of the partner, the stock owned by the heirs of the deceased partner in an amount, at the option of the heirs, not in excess of $ 25,000. This was likewise to be done for the heirs of any other partner who might die, the maximum amount of stock to be so purchased to be the same proportion of $ 25,000 that the deceased partner's capital bore to the capital of the partner then having the largest investment in the firm. The sale price was to be determined by an appraisal of the corporation's*114 assets made by or under the direction of the *336 auditors of the firm as of the date of the death of the deceased partner.
The final amendment of the partnership agreement was made on June 10, 1936. Clause 2 of the agreement of May 29, 1934, was amended to read as follows:
In the event of the dissolution of this partnership through the death of any one or more of the partners, the surviving partner or partners, instead of liquidating and winding up the business of this co-partnership, may if he or the majority of them desire organize a co-partnership under the name of Atkins, Kroll & Company which would include as a limited partner or as limited partners the heir or heirs of any one or more deceased partners to the extent of the same share in the properties and assets of Atkins, Kroll & Company as the said deceased partner or deceased partners owned in this co-partnership at the time of his or their death, or at the option of the surviving partner or partners, organize a corporation and transfer and convey to said corporation all of the assets of said co-partnership upon the said corporation assuming all of the obligations of said co-partnership.
Clause 4 of the agreement of*115 May 29, 1934 (the clause referred to in the second preceding paragraph of these findings), was also amended so as to make it applicable to a limited co-partnership.
Between the dates of December 6, 1922, and January 31, 1923, the partnership took out three policies of life insurance on the joint lives of Kroll and decedent. The partnership, its successors or assigns, was named as beneficiary in each policy and the premiums were paid by the partnership.
One policy in the amount of $ 150,000 was payable to the partnership upon proof of death of the one first dying (decedent or Kroll). An endorsement upon this policy recited that it was understood and agreed between all parties to the policy that the beneficiary, its successors or assigns, should have the right, without the consent of the insured, and to the exclusion of the insured, to receive payment of dividends, obtain loans on the policy, surrender it for the cash value, or claim and obtain all other benefits under it. The policy was assigned by the partnership to Crocker First National Bank of San Francisco on May 14, 1937, as collateral for a debt of the partnership to the bank.
Two other policies in the amount of $ 25,000 *116 each, one dated January 12, 1923, and another dated January 31, 1923, payable on the death of Kroll or decedent to the partnership, its successors or assigns, were also in force at the time of decedent's death.
All premiums on the three policies of insurance referred to above were paid by the partnership. The premiums, less dividends, were charged on its books to a life insurance account. At the end of the year a statement was obtained from each of the insurance companies showing the cash surrender value of each policy, and the difference between the total premiums paid and the cash surrender value was *337 ascertained and charged as an expense of the partnership business. The cash surrender value of the policies was set up as an asset of the partnership on its books. The difference between the premiums paid and the cash surrender value at the end of each year was charged to expense.
The death of decedent matured the three policies and there was paid to the partnership the face amount thereof, namely $ 200,000, plus post morten dividends in the amount of $ 1,395.98. $ 200,000 of this amount was paid to the Crocker First National Bank of San Francisco on the indebtedness of*117 the partnership to it.
In schedule D of the estate tax return the receipt of $ 201,395.98 by the partnership under the three policies was shown. $ 79,985.82 of the amount was included in gross estate (together with $ 16,850.60 insurance plus $ 154.58 post mortem dividends collected by the widow under policies payable to her put not in issue herein) and $ 40,000 was deducted on the theory that the aggregate amount of $ 96.991 had been received as insurance by beneficiaries other than the executor under policies taken out by the decedent upon his own life. (811 (g), I. R. C.) The computation of the $ 79,985.82 was made as follows:
| Aggregate amount received by partnership | $ 201,395.98 | |
| Cost of policies to partnership | $ 101,078.62 | |
| Amount collected in excess of cost | 100,317.36 | |
| $ 201,395.98 | $ 201,395.98 | |
| Decedent's interest in cost of policies to | ||
| partnership (46.05% of $ 101,078.62) | $ 46,546.70 | |
| Decedent's interest in amount collected in excess of | ||
| cost (33 1/3% of $ 100,317.36) | 33,439.12 | |
| $ 79,985.82 | ||
| Amount collected by other partners in which decedent | ||
| possessed no incidents of ownership | 121,410.16 | |
| $ 201,395.98 |
The value of decedent's interest in the partnership*118 of Atkins, Kroll & Co., set out in the "statement of the Partners' Capital Account," as of the date of his death, was $ 198,810.93. Included in this value was the decedent's interest in the proceeds of the three policies of life insurance receivable by the partnership. In the estate tax return petitioner reported $ 118,825.11 of this amount on schedule F as the value of the decedent's interest in the partnership at the date of his death, and treated the balance, $ 79,985.82, computed as shown above, as insurance receivable by the partnership under policies taken out by the decedent upon his own life.
Respondent determined that the sum of $ 79,985.82 was "not subject to the specific exemption of proceeds of life insurance policies as provided by section 811 (g) * * * and consequently said sum has *338 been eliminated from Insurance, Schedule D. * * * and included in the value of decedent's interest in said partnership * * *."
Decedent's will was dated February 17, 1923. Therein he devised to his daughter the sum of $ 5. All the rest, residue and remainder of his property "subject to the terms of the partnership agreement existing at the time of * * * [his] death relating to*119 * * * [his] interest in the partnership firm of Atkins, Kroll & Co." was devised and bequeathed to his wife. By a codicil dated May 29, 1934, (the date of the execution of one of the partnership agreements) he declared and provided:
* * * whoever shall inherit my interest in, to and under the co-partnership of Atkins, Kroll & Co. shall take such interest and rights subject to all the provisions in said articles and amendments thereof and to the rights reserved therein to the surviving partner or partners of said co-partnership.
The surviving partners did not notify the executrix or her attorney, during the administration of decedent's estate, of any election as to the method of liquidating the interest of the decedent in the partnership. Decree of final distribution in the estate was made in December 1940. Thereafter the surviving partners for the first time entered into negotiations with decedent's widow for the liquidation of the interest of the decedent in the partnership. An effort was then made to form a partnership with her as a limited partner. The parties were unable to agree upon the terms and provisions of a limited partnership and the interest of decedent was finally*120 liquidated by the payment of certain sums and the execution of promissory notes to decedent's widow.
Among the assets of the partnership at the date of decedent's death were certain shares of stock, determined by respondent to have the fair market value shown in the following schedule:
| Fair market | ||
| value as | ||
| Shares | Item | determined by |
| respondent | ||
| 223 | Crocker First National Bank | $ 63,555.00 |
| 223 | Realization Co | 334.50 |
| 1332 | Consolidated Oil Co. of Calif | 9,657.00 |
| 12 | Standard Oil Co. of Calif | 316.50 |
| 800 | Bunker Hill & Sullivan Mining Co | 12,000.00 |
| 822 | Treadwell Yukon Corp., Ltd | 139.74 |
| Total | 86,002.74 |
In making the above determination, respondent used the mean between the high and low of the market quotations on the date of the death of decedent, which, it is stipulated, represented the fair market value of the securities on that date. The surviving partners, in making their appraisal of the stock as a basis for fixing and determining the value of the interest of the decedent in the partnership at the *339 time of his death, used the bid prices on the exchange on the date of the death of the decedent and determined that the stocks, for the purpose*121 in hand, had a fair market value of $ 77,010.52.
The decedent's interest in the stocks and bonds owned by the partnership was one-third. The Commissioner therefore added to the value of decedent's interest in the firm as reported in the estate tax return, one-third of the difference between the two appraisals ($ 8,992.22), or $ 2,997.41.
Decedent, Kroll and David Atkins, on July 2, 1934, executed and delivered to Laura Stouder Atkins a promissory note, payable to her order on or before July 1, 1935, in which they "jointly and severally" promised to pay the sum of $ 14,172.03 with interest at the rate of 6 percent per annum. The partnership paid on the principal of the note $ 3,158.57, leaving a balance of $ 11,013.46 due.
The following is a copy of one page of the payee's ledger:
| 1937 | |||
| Dec. 31 | Amount of Note | $ 11,013.46 | |
| CHK 1/3 = | $ 3,671.15 | ||
| GHA | " | ||
| DA | " | ||
| 1939 | |||
| Mar. 22 | Payment of Principal 1/3 by CHK | 3,671.15 | |
| Apr. 28 | " by GHA on a/c | 1,981.90 | |
| Aug. 10 | " " " " " | 821.15 | 6,474.20 |
If any funds should come in from Life Insurance on Firm Policies payment by AK for acct. of David Atkins of $ 3,671.15 should be made plus 6% int.
Atolia *122 Stock
DA. should pay out of same if otherwise unable
The unpaid balance due on the principal of the note on the date of the death of the decedent was $ 4,539.25. The payee filed a claim against the estate of her deceased husband for the full amount due, or $ 4,539.25. The claim was approved by the Probate Court.
All of the signers or makers of the note were "financially able to meet the entire obligation." The record does not show whether any demand for payment was ever made upon them.
In the estate tax return filed by the executrix the sum of $ 4,539.25 was deducted as a claim against the estate. Respondent determined that the amount due on the note "from decedent in his own behalf" was but $ 868.10 and that to that extent the obligation had been incurred by him for a full and adequate consideration in money or money's worth. The remainder of the claimed deduction was disallowed.
OPINION.
The first issue requires determination of the treatment to be accorded the proceeds of insurance collected by the partnership *340 of which decedent was a member at the time of his death. Respondent contends that the decedent's interest in the insurance proceeds reflected in the value of*123 his interest in the partnership, which amounted to $ 79,985.82, is includible in his gross estate as a part of the value of his interest in the partnership at the time of his death. Petitioner contends that this amount should be excluded from the value of the partnership interest and included, together with the amount collected under other policies upon the decedent's life amounting to $ 16,850.60, in schedule D of the estate tax return as insurance taken out by the decedent upon his own life, receivable by beneficiaries other than the executrix of his estate. If petitioner is correct, the amount includible in schedule D as insurance would be $ 79,985.82 plus $ 16,850.60, or $ 96,746.42, from which would be subtracted the $ 40,000 exclusion provided for in section 811 (g) of the Internal Revenue Code. This would leave $ 56,746.42 in the gross estate as insurance subject to tax. The parties agree that petitioner correctly reported the insurance proceeds of $ 16,850.69, and that the $ 40,000 exclusion would eliminate any tax upon this amount. The essence of the controversy therefore is whether petitioner is entitled to an additional exclusion of $ 23,149.40.
The pertinent provisions*124 of the applicable statute, section 811 of the Internal Revenue Code, are set out in the margin. 1
In order for petitioner to prevail she has the burden of proving that the $ 79,985.82 was receivable by beneficiaries other than the executrix of decedent's estate, under policies taken out by him upon*125 his own life. Upon brief the following statement is made: "There is no question here whether these policies were taken out by the decedent on his own life," following which argument is made, directed solely to the question whether the proceeds were receivable by beneficiaries other than the executrix of the decedent's estate. It is not clear why petitioner has assumed that the question whether the policies were taken out by the decedent upon his own life is not involved. We find no concession by the respondent to that effect nor is there any statement in his brief which would justify any such assumption.
The phrase "taken out by the decedent" has been the subject of extensive litigation. No attempt will be made to review all of the cases *341 here. 2 It is sufficient for present purposes to state generally that, prior to the enactment of the Revenue Act of 1942 (sec. 404), insurance was not deemed to have been taken out by the decedent, even though application be made by him, if the premiums were actually paid by some other person or corporation and not out of funds belonging to or advanced by the decedent and if he retained no legal incidents of ownership, such as a power*126 to change the beneficiary, to surrender or cancel the policy, to assign or revoke an assignment, to pledge the policy for a loan, to obtain its cash surrender value, etc. See article 25 et seq. of Regulations 80. Cf. corresponding articles of Regulations 70. Cases applying some part of the general rule are numerous, a few of them being Wilson v. Crooks, 52 Fed. (2d) 692; Estate of Harry W. Hahn, 38 B. T. A. 3; and Estate of Edward Doerken, 46 B. T. A. 809.
The Treasury Department has been somewhat vacillating in its position. At one time it applied the test of payment of premiums, later shifting to the triple test of payment of premiums, control, and legal incidents of ownership, and still later going back to the position originally taken. This is of no particular importance here except to "point up" the fact that payment of premiums, *127 directly or indirectly, has always been a crucial factor.
In the reply brief of petitioner the following statement appears:
The premiums were paid by the partnership and hence were paid in part, of course, by the partners other than the deceased. The decedent therefore only paid such part of the premiums as were represented by his proportionate interest in the partnership from time to time. Section 81.25 of Regulations 105 specifically provides that where a portion of the premiums or other consideration was actually paid by another and the remaining portion by decedent, either directly or indirectly, such insurance is considered to have been taken out by the latter in the proportion, that the payments therefor made by him bear to the total amount paid for the insurance. Of the total of $ 200,000 represented by the policies, therefore, only that portion thereof that the payments made by decedent bore to the total amount paid for the insurance was taken out by him. This amount, as has been stipulated, was $ 79,985.82.
This statement contains some inaccuracies. The parties did not stipulate that $ 79,985.82 represented that portion of the insurance proceeds "that the payments made*128 by decedent bore to the total amount paid for the insurance." They simply stipulated that the decedent's proportionate interest in the insurance proceeds, as reflected in the assets of the partnership, amounted to $ 79,985.82. As shown in our findings, this amount was arrived at by determining that a part of the insurance proceeds represented capital and the remainder profit, and by dividing the amounts assigned to capital and profit by the percentage interest of the decedent in these two items. *342 Decedent had a 46.05 percent interest in the capital of the partnership and a 33 1/3 percent interest in its profits. The $ 79,985.82 represents the amount of his interest as a partner in a partnership asset at the time of his death and not the amount of insurance purchased by premium payments made by him.
The undisputed facts disclose that the partnership took out three policies of insurance aggregating $ 200,000 on the joint lives of the decedent and another member of the firm; that it paid the premiums on these policies; that it was the beneficiary; and that the policies constituted a part of its assets. Any doubt that this was the true intention of the parties is dispelled*129 by an examination of the new article which was added under date of May 29, 1934. It is evident, therefore, that the decedent did not actually pay, directly or indirectly, any part of the insurance premiums with funds belonging to him. The funds used were partnership property. "It has repeatedly been determined * * * that the property or effects of a partnership belong to the firm and not to the partners * * *." Bank v. Carrollton Railroad, 78 U.S. 624">78 U.S. 624. "The personal property of a partnership is owned not by the partners individually, but by the partnership. By the contract of partnership, the partners acquire a joint interest in the personal effects of the partnership. Each partner is possessed per my et per tout, that is, the interest of each member of a partnership extends to every portion of its property, and is a joint interest in the whole and not a separate interest in any particular part." 40 Am. Jur. § 107; Sam H. Harris, 11 B. T. A. 871, 874; Henry Wilson, 16 B. T. A. 1280, 1287. Decedent had no interest in the funds expended for insurance, save as they might figure in*130 "his share of the profits and surplus." Stilgenbaur v. United States, 115 Fed. (2d) 283; Helvering v. Walbridge, 70 Fed. (2d) 682; United States v. Hack, 33 U.S. 270">33 U.S. 270; Modern Law Partnership, Rowley, vol. 1, sec. 292. The partnership, as an unincorporated organization through which business was being carried on, was a "person" (sec. 1001, Revenue Act of 1936), even though not a taxable entity under the revenue act (secs. 181 and 182, Revenue Acts of 1936 and 1938). It chose to invest some of its funds in acquiring an asset, viz., the three insurance policies. It had full control over them and all legal incidents of ownership. Thus it met all of the tests, including the payment of premiums.
From what has been said it is apparent we are of the opinion that the insurance was taken out by the partnership rather than by the decedent upon his own life. While this conclusion requires a decision in favor of the respondent, it may not be amiss to discuss briefly the principal argument of petitioner, viz., that the insurance proceeds were receivable by beneficiaries other than the executrix*131 of decedent's estate.
*343 Petitioner first argues that the proceeds of the life insurance policies were payable, and were paid, to the partnership and became a part of its assets, losing their identity as insurance proceeds. It is urged, therefore, that even if the executrix had the right to recover the interest of the decedent in the partnership from the surviving partners (including decedent's proportionate interest in the insurance) the amount would not have been received by her "as insurance." This argument really tends to support respondent's determination and the conclusion reached by us. The essence of it is that all the decedent owned at the time of his death was an interest in a partnership, which had invested a substantial portion of its funds in insurance policies, and that the insurance proceeds should be treated the same as any other partnership asset in computing the value of decedent's partnership interest. 3
*132 A determination that no part of the insurance proceeds was receivable by the executrix as insurance would not help the petitioner in view of our conclusion that no part of the insurance was received by the partnership "under policies taken out by the decedent upon his own life." It is perhaps pertinent to mention, however, that if we had held that part of the insurance was taken out by the decedent upon his own life, there is substantial authority for the view that his interest in the insurance proceeds should be treated as insurance receivable by the executrix of decedent's estate. If it can be said that decedent, directly or indirectly, paid part of the insurance premiums with funds belonging to him, thus disregarding the rule that partnership property belongs to the partnership, then by a parity of reasoning the decedent consented, in advance of his death, to the payment of his part of the partnership debts with his portion of the insurance proceeds. In other words, it would seem to follow that the partnership, as a trustee, collected decedent's part of the insurance proceeds and paid his part of the debts. To the extent that proceeds of insurance are used for the payment of*133 the debts of a decedent they should be included in gross estate as insurance receivable by the executrix. Pacific National Bank of Seattle, Executor, 40 B. T. A. 128; Estate of Waldo Rohnert, 40 B. T. A. 1319. The debts so paid are of course deductible; so where, as here, the debts (i. e., decedent's share of the partnership debts) equal the amount received as insurance, the estate subject to tax is not increased. We do not choose to rest our decision on this ground. We merely point out what seems to be the result of following consistently and to its logical conclusion the theory that the individual partners, rather than the partnership, took out the insurance.
*344 Another reason advanced by petitioner in support of her position that the insurance proceeds were receivable by beneficiaries other than the executrix is that under the partnership agreements the executrix could not have recovered from the surviving partners decedent's interest in the partnership (including his proportionate share of the proceeds of the life insurance represented therein), and that this interest was payable and deliverable to the "heirs*134 of the decedent" and not to his estate. Petitioner urges therefore that decedent's widow was the real beneficiary because she was his designated heir. This argument is unsound in principle, and, if sustained, would present insuperable administrative difficulties. In a sense it is true that the insurance benefited her; but that would have been equally true if, e. g., she had been the owner of shares of stock in a corporation, the value of which had been enhanced through the death of her husband upon whose life the corporation had carried insurance. One of the unsound premises upon which the argument is bottomed may be mentioned. Upon brief it is said: "* * * the interest of the decedent in the partnership at the time of his death was never at any time an asset of his estate and was never subject to his creditors in the estate, nor subject to distribution in any other sense than in the sense of designating the person or persons to whom he desired his interest to go. The person or persons so designated was the person or persons with whom, under the agreements, the surviving partners were to deal." No provisions of the Probate or Civil Code of California have been cited in support*135 of this statement, and we have found none. Under section 571 of the Probate Code the interest of a decedent in a partnership is required to be included in the inventory and appraised as other property, though the surviving partner has the right to continue in possession of the partnership and to settle its business. Partnership interests "may be sold in the same manner as other personal property" (sec. 774, Probate Code of California), the only limitation apparently being that partnership debts have priority over individual debts (sec. 2434, Civil Code of California). These rules were recognized and applied by the executrix and she distributed the assets to herself with the consent and approval of the court having jurisdiction over the administration of the estate. We can not believe that all of the interested parties were mistaken in determining that the interest of the decedent in the partnership was an asset of his estate, even though fortuitously it was never subjected to the payment of his debts and passed, as he intended, to his widow.
In our judgment the respondent correctly included in decedent's gross estate the fair market value of his interest in the partnership and*136 we so hold. He also correctly allowed, as an exclusion under subdivision (g) of section 811, supra, the aggregate amount "receivable *345 by all other beneficiaries as insurance under policies taken out by the decedent upon his own life," viz., $ 16,850.60.
The second issue arises from the determination of the respondent that the value of decedent's interest in the partnership, as reported in the estate tax return, should be increased in the amount of $ 2,997.41 because of an understatement of the fair market value of shares of stock, which were part of the assets of the partnership on the date of decedent's death.
The partnership agreements provided that in the event of the death of one of the partners an appraisement of the partnership assets should be made "by a competent person or firm designated by the surviving partners" and that investments, such as stocks and bonds, should be appraised "at their fair market value." The parties have stipulated that the fair market value of the shares of stock owned by the partnership was $ 86,002.74 on the date of decedent's death. The surviving partners made an appraisal (whether the executrix consented that they should do so rather*137 than make the designation is not shown) using the bid prices on the exchange on the date of death. They thus determined that the shares had a value of $ 77,010.52. The amount which respondent has determined should be added to the value of the decedent's partnership interest is one-third of the difference between $ 86,002.74 and $ 77,010.52, or $ 2,997.41.
Petitioner argues that the surviving partners made an appraisement of the value of the decedent's interest in the partnership as of the date of his death; that as a result of this appraisement the value of decedent's partnership interest was fixed at $ 198,819.93; that no one was entitled to a greater amount for that interest; and that to add to the value of that interest, by a reappraisement of some of the assets of the partnership, would, in effect, require a tax to be paid on property or values which will never be received by anyone.
The argument is appealing; but in our judgment petitioner can be given no relief under the posture in which the issue is presented. The question is the fair market value of decedent's interest in the partnership. This requires that a "fair appraisal of all the assets" be made and the business *138 "be given a net value equal to the amount which a willing purchaser * * * would pay therefor to a willing seller." (Art. 10 (d), Regulations 80; Estate of Leopold Kaffie, 44 B. T. A. 843; Guggenheim v. Helvering, 117 Fed. (2d) 469.)
Presumably the parties are in agreement as to all factors going to make up the valuation of the partnership interest save one -- the fair market value of the stock. The general rule for determining the fair market value of listed stocks and bonds is to take the mean between the highest and lowest quoted selling prices upon the valuation date. Art. 10 (c), Regulations 80; Estate of Daniel Guggenheim, 39 B. T. A. 251, 293, *346 and cases cited. No attempt was made by petitioner to prove that the stock had a lesser fair market value than that determined by the respondent. On the contrary it was stipulated that the fair market value was precisely what he determined. Apparently petitioner did not intend to concede the issue; but as we view it the stipulation can only be construed as an admission that all the items going to make up the fair market value *139 of decedent's interest in the partnership were correctly appraised by the respondent. The fact that a lesser amount may have been paid over to his estate or heirs is immaterial. Respondent committed no error in adding the amount presently in issue to the fair market value of decedent's interest in the partnership.
The last question is whether respondent correctly limited the deduction from gross estate under section 812 (b) (3) I. R. C. to the amount ($ 868.10) which he determined to be due "from the decedent in his own behalf" to his wife (widow). The facts are not in dispute and are shown in our findings. Decedent and his partners (Kroll and David Atkins) had signed and delivered to Laura Stouder Atkins a joint and several obligation, promising to pay to her order the sum of $ 14,172.03. The partnership paid $ 3,158.57, leaving a balance due of $ 11,013.46. The payee, upon her books of account, charged each of the makers with one-third of that amount, or $ 3,671.15. Kroll paid his one-third on March 22, 1939 and decedent, before his death, paid all of his one-third except $ 868.10. The amount due, therefore, represented David Atkins' share of the debt, plus $ 868.10 due from*140 the decedent.
Petitioner argues that since the note was "joint and several" decedent, at the time of his death, was obligated to pay the entire amount due and, since he was primarily liable, that it devolved upon respondent to show that the balance due had not been contracted bona fide by the decedent or for an adequate and full consideration in money or money's worth. The executrix recognizes, however, that proportionate contribution from the co-makers could have been required under section 1432 of the Civil Code of California and has stipulated that each "was financially able to meet the entire obligation." In petitioner's closing brief it is urged that respondent should have added to the value of the net estate the right of contribution against the surviving partners rather than disallowing the claimed deduction.
Respondent determined that decedent had incurred the obligation for a full and adequate consideration in money or money's worth to the extent of $ 868.10. Implicit in this determination is a holding that the remainder of the amount claimed as a deduction had not been so incurred, casting upon petitioner the burden of showing the contrary. The question, however, need*141 not be labored. The function *347 of this tribunal is to determine the correct tax liability. Petitioner contends that respondent, instead of denying a portion of the amount claimed as a deduction, should have included in gross estate the value of the right to require contribution from the other makers. It may be that the right more properly should be labeled exoneration or subrogation; but that is of no moment. What is important is the admission that the right is of value -- each of the makers being solvent -- and that it is obvious net estate will be understated if the amount claimed as a deduction is allowed and no additional amount is included in gross estate. The correctness of the deficiency in tax is the controlling factor -- not the method by which it is determined. Hughes v. Commissioner, 38 Fed. (2d) 775; Helvering v. Gregory, 69 Fed. (2d) 809; Helvering v. Gowran, 302 U.S. 238">302 U.S. 238. We are convinced that the amount determined by the respondent is correct. We therefore decline to disturb it.
Decision will*142 be entered for the respondent.
Footnotes
1. SEC. 811. GROSS ESTATE.
The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States --
(a) Decedent's Interest. -- To the extent of the interest therein of the decedent at the time of his death;
* * * *
(g) Proceeds of Life Insurance. -- To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $ 40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.↩
2. For a full discussion see Paul, Federal Estate and Gift Taxation, 10.12 et seq↩.
3. For a discussion of the property rights of a partner in specific partnership property see Uniform Laws, Ann., Book 7, Partnership, Part V, par. 24, et seq↩.