By the trust deed in question, made twelve years before her death, the decedent gave her sons life interests in income, retained no beneficial interest in herself, but reserved the power of revocation, alteration or amendment. The Transfer Inheritance Tax Act of June 20, 1919, P. L. 521, imposes a tax on the transfer of property made in contemplation of the death of the donor, or intended to take effect in possession or enjoyment at or after such death. After the execution of the trust deed, the only property — if such it can be called — which remained in the decedent was the right to revoke, alter or amend. This right was not exercised. The Commonwealth claimed tax on the life interests of the sons, on the ground that these interests, which, during the life of the decedent, were subject to revocation, became at her death absolute and indefeasible.
Taxing laws are to be strictly construed. The property contemplated by the act is not property of a cestui que, trust, but property of a donor. “That ‘property’ means something tangible,” as said by the auditing judge, “is shown by the fact that where the word ‘transfer’ is used, we speak of an interest in the property, and there can be no interest apart from the thing itself in a right of revocation.” A power of revocation is not a chose in action, and cannot be transferred or sold or devised so as to vest it in another.
Jones v. Clifton, 101 U. S. 225 (1879), was a suit by Jones as assignee in bankruptcy of Charles H. Clifton, to set aside two deeds executed by the latter to his wife, and to compel a transfer of the property embraced in them to the complainant. The deeds in question conveyed certain real estate and policies of insurance to his wife, to hold as her separate estate, free from his control, use and benefit, and the consideration named was the love and affection which he bore her. The deeds contained a clause reserving to himself the power to revoke the grant and assignment, in whole or in part, and to transfer the property to any uses he might appoint, and to such person or persons as he might designate, and to cause such uses to spring or shift as he might declare. At the time of making the deeds he was solvent, but in the general financial panic of 1873 his estate was wasted and he became hopelessly insolvent. Complainant was subsequently appointed assignee of his effects, and in getting together the assets to pay creditors, he sought to have the deeds set aside upon various grounds, the third of which, as expressed in the opinion of the court, was: “That the power of revocation and appointment were assets which passed to the assignee in bankruptcy, and can be executed by him for the benefit of creditors.”
The court, through Mr. Justice Field, said: “The questions thus presented, though interesting, are not difficult of solution. . . . The title to the land and policies passed by the deeds; a power only was reserved. That power is not an interest in the property which can be transferred to another or sold on execution or devised by will. The grantor could, indeed, exercise the power either by deed or will, but he could not vest the power in any other person to be thus executed. Nor is the power a chose in action. It did not, therefore, in our judgment, constitute assets of the bankrupt which passed to his assignee.”
*268This case was soon followed by Brandeis v. Cochrane, 112 U. S. 344 (1844). In that case property was conveyed to a trustee in trust to permit the grantor’s wife to receive the rents and profits during her lifetime, and at any time the trustee could convey on the written request of the grantor and his wife to the person designated, and in case of the wife’s death in the grantor’s lifetime, to convey to the grantor for life with remainder to their children. Later, the grantor became bankrupt, and it was contended that the power of appointment secured to the grantor and wife operated to subject the entire estate, which could be disposed of under that power, to the claims of creditors reduced to judgment. The court held, however, that the estate of the grantor under the trust was merely equitable and of a nature which could not be subjected to sale for the payment of his debts. The opinion proceeds: “It is further said, however, that the bankruptcy itself cut off power of appointment in Forsythe (the grantor). If so, it passed to the assignee in bankruptcy for the benefit of the estate and of the general creditors. . . . But it is held in Jones v. Clifton, 101 U. S. 225, that such a power of appointment does not pass to an assignee in bankruptcy of the person in whom the power resides.”
This case reiterates the rule which seems to be well founded in the common law that a power of appointment is not property. It would' seem that the power to revoke which Mrs. Dolan reserved to herself in the deed now before the court is very similar to a power of appointment. Viewed from one position, the deed may be considered to be a deed of trust reserving to the grantor a power of appointment to herself or any one else whom she might prefer to the grantees named in the deed, for such is the effect of the power of revocation.
A power of revocation is analogous to a power of appointment, which can be exercised only by the person in whom it resides: Harrington v. Harte, 1 Cox’s Chancery Cases, 130; Holmes v. Coghill, 12 Vesey, Jr., 205; Supreme Colony v. Towne, 87 Conn. 644. In the latter case it is said (page 648) : “A mere power of appointment is not an asset in the donee of the power and conveys no title to or interest in the property conveyed (Coke Lit., 235 b), and, unexercised by the donee prior to his death, becomes wholly unoperative.”
Nor is a trust invalid because of the reservation of a power of revocation: Dickerson’s Appeal, 115 Pa. 198; Windolph v. Girard Trust Co., 245 Pa. 349.
As the decedent retained for herself no interest in the trust fund, the thought that the trust was created in contemplation of death is excluded; and cases like Conwell’s Estate, 19 Phila. 95, where Judge Ashman sagely observes that “the devices are many and devious by which grantors have sought to retain the revenues of property and at the same time to escape from its burdens by surrendering its possession,” and cases cited as inapplicable by the auditing judge from claimant’s brief, as well as all cases where the grantor retained a beneficial interest, are not in point.
The cestui que trust was to enjoy the benefit of the trust from its creation, and continues to do so according to its terms, and the mere naked power of revocation, considering the length of time since the creation of the trust, is not sufficient to justify the imputation of a motive to the decedent to evade an act which had not at that time been passed and which has been held not to be retroactive: Dick’s Estate, 30 Dist. R. 839. Nor is the reserved power to change the trustee indicative of any such motive. See Houston’s Estate, 2 D. & C. 334 (affirmed by the Supreme Court).
For these reasons, and the reasons given by the hearing judge, the exceptions are dismissed and the decree entered by him is confirmed.