(concurring).
I' concur in the opinion of Judge CHASE for the reason that there was no proof that the sum received by the taxpayer in settlement of the will contest was not wholly gain over the value of any right which passed to him on the death of the testatrix. On the record before us it is quite impossible to say whether the bequest for the benefit of the Longyear Foundation was reduced under the agreement, because of the legal strength of the contestant’s position or because of avoidance by the Foundation of the expense and annoyance of litigation, or of its belief that to retain so large a portion of the estate against the protest of the relatives as would pass to it under the literal terms'of the will would be unwise as a matter of policy. That many considerations other than the weighing of strict legal rights dictate the settlement of will contests is notorious.. -If it had been, or could have been shown what the rights of the next of kin to contest the will were worth, I am inclined to think that no taxable gain ’could have been assessed unless the $141,484.03 proved to be greater than that worth. It- was for the reason that the rights of the taxpayer derived under the will in Sterling v. Commissioner, 2 Cir., 93 F.2d 304, were shown to be worth nothing because they had no legal validity that we held the entire amount received by her from the proceeds of sale represented a taxable gain. But there may be situations where the value of a right to contest a testamentary disposition can be established. If so, that value should furnish a base for determining whether an amount received in settlement can fairly be found to involve a gain. One example of such a situation would be where a devise clearly violated the rule against perpetuities or against the suspension of alienation. There property would pass by inheritance and other testamentary dispositions in the will would remain effective although the invalid devise was in form a testamentary gift. > It would seem that if the heir settled his claims for less than his full right of inheritance and allowed the balance of- the property covered by the invalid devise to pass to the person described in the will, he would in fact be receiving an inheritance, even though the mode of acquiring the portion of the estate which- would pass to him would be through the mechanism of an agreement of settlement. In such a case I think he ought not to be chargeable with any taxable gain.
Where a probate court directs a transfer of a decedent’s property to a person not entitled to it under a will, but who would be entitled to inherit it if there were no will, I incline to the view that the right to contest the will is of the nature of an inheritance excluded from gross income under section 22 (b) (3) of the Revenue Act of 1932, 26 U.S.C.A. § 22 (b) (3) and note, and that the amount received in exchange for his right represents a taxable gain only to the extent that it exceeds the value of the right to contest. I think, in other words, that taxation must in every case depend upon the particular facts and not upon a general rule that wherever an heir at law settles a will contest everything he may receive under . the settlement represents a gain to be included in his income for taxation purposes. The difficulty in the present case is in determining the basis for computing the gain and of showing the value of the taxpayer’s right to contest and that the payment of $141,484.03 to him was not wholly gain. It is because of the failure of the taxpayer to meet the burden of establishing whether his inherited *145right had any value and, if so, what value it had, that he must fail. We cannot say that the amount paid in settlement was not greater than the value of the right to contest the will or that the assessment of the Commissioner was unfounded.