(concurring).
I do not think the question is so one-sided as it is made to appear. The Revenue Act of 1932, Sec. 504(b), excluded from tax the first $5,000 “in the case of gifts (other than of future interests in property) made to any person by the donor during the calendar year.” By Section 1111(a) (1), 26 U.S.C.A. Int.Rev.Acts, “The term ‘person’ means an individual, a trust or estate, a partnership, or a corporation.” This definition was cited and applied in Commissioner v. Wells, 7 Cir., 88 F.2d 339, and Commissioner v. Krebs, 3 Cir., 90 F.2d 880, the trusts therein being treated as the donees of the gifts. However, most of the discussion was about the question of “future interests in property”, and the holding on that was thafa what the donor presently parted with and not what some beneficiary might presently receive was determinative. Welch v. Davidson, 1 Cir., 102 F.2d 100, rejected the idea that the trust was the donee, and by confusing the trust with the trustee, (who of course takes title only and no beneficial interest), asserted that the beneficiaries are always the donees. Reliance was put on Burnet v. Guggenheim, 288 U.S. 280, 53 S.Ct. 369, 77 L.Ed. 748, which decided nothing about whether the trust or the beneficiary was the “person” to whom a gift in trust is given, but decided only that the gift is not complete until the power to revoke it is extinguished. Rheinstrom v. Commissioner, 8 Cir., 105 F.2d 642; Robertson v. Nee, 8 Cir., 105 F.2d 651; McBrier v. Commissioner, 3 Cir., 108 F.2d 967, follow the Welch case. The dictum of these latter cases that “in equity the beneficiary of a trust is the owner of the trust res” [105 F.2d 646] is not always true, as in the case of charitable trusts. Equity does not hold the trustee to be the full owner, because his title is incumbered with the trust, but often and for long periods the beneficiaries may be unknown or unascertainable, or some enterprise or cause is to be benefitted rather than certain individuals. And if Congress really intended “the trust” to be regarded as the “person” who receives a gift, the attitude of equity would be immaterial. The amend-mant of Sect. 504(b) by the Act of May 28, 1938, 52 Stat. 565, § 505, which excludes “gifts in trust” as well as “of future interests in property” from the $5,-000 exemption, shows only that Congress thought best to avoid rather than settle the question whether the trusts or the individual beneficiaries should be counted in ascertaining the number of gifts.
While from an administrative standpoint it is regrettable to introduce a question of the donor’s intention as controlling, I think we must. If it appears that some enterprise or charity or impersonal purpose, or even remote and un-ascertained first beneficiaries, furnished the motive for the gift in trust, it should be esteemed a single gift to the trust. If on the other hand the first beneficiaries are ascertained individuals whom the donor wished to help, and used the trust only as a device to convey or preserve the gift or control its ultimate devolution, the gift is to these persons, and not to the trust, and there are as many gifts as there, are first beneficiaries. In the case first put the gift is moved by a general benevolent purpose, and resembles a gift to a corporation, which would be but a single gift no matter who might be or become stockholders. In the second case the gift is moved by personal affection, intended to benefit special individuals who might have been made separate donees.
In the case before us the gift in trust . was plainly not moved by any general idea or ideal, but by personal affection to her seven children. She might easily have created a trust for each in a seventh of the property. Her intention was to give each an equal share, with the safeguards afforded by the trust management. Without doubt her intention was to make a gift to each of her children, the trust being only the machinery to accomplish it.