(dissenting).
The whole case turns upon Section 503 of the Revenue Act of 1932 which provides that where property is transferred for less than an adequate and a full consideration in money or money’s worth the amount by which the value, of the property exceeded the consideration shall be deemed a gift and subject to the Federal Gift Tax.
Perplexity arises in the present case as to which transfer of property we should concern ourselves with—the transfer of dower, and kindred rights by the wife, or the transfer of money by the husband. The majority opinion determines the case from the standpoint of a transfer of $300,-000 by a husband to a prospective wife, pursuant to a pre-nuptial agreement, with the result that the majority reaches the conclusion that there did not flow to the prospective husband any, or at least any adequate, consideration in money, or money’s worth. It is the view of the majority that all the husband got out of the contract was a wife whose value cannot be measured in money.
A different viewpoint arises, however, out of the fact that the only property, as distinguished from cash, transferred was by the wife in the relinquishment and transfer of all right, title, and interest in “pll properties, wheresoever situated, and every right pertaining thereto whether of dower, election, participation, inheritance or other title or allowance.” The wife, furthermore, waived, discharged, and released “every interest, claim or demand of whatsoever kind or description, in law or in equity, that may accrue to her or which she may hereafter acquire as wife or widow, in the real and personal property now or hereafter owned by the first party” (husband), to the end that neither the wife nor her heirs would thereafter be entitled' to assert any right, claim, or demand whatsoever against any of the properties or estate of the husband, but should be forever barred or excluded therefrom. The transfer of property was from the wife to the husband, but it is not argued that since the husband - failed to pay her full and adequate consideration therefor she should pay a gift tax on the excess of the value of the property rights transferred over the amount of the payment therefor.
The pre-nuptial agreement was based on the conditions: (1) that the marriage would be later entered into; (2) that within ninety days “from the date of said marriage” the husband would create a trust and pay over the $300,000.00 in cash thereto. Each of these steps was a sine qua non without which the pre-nuptial agreement would have been merely nudum pactum.
The marriage was consummated, and within ninety days the husband created the trust and paid over the $300,000. When the payment of the $300,000 was made (which is the critical date, or the date which fixes the status of the transaction whether it be a gift or a transfer for a consideration in money or money’s worth), it was not made to a prospective bride, as observed in the majority opinion, but was made to a wife, who was then lawfully possessed of the rights and status of a wife in the property transferred, and who, by the signing of the trust indenture and by the acceptance of the trust, reaffirmed and ratified her relinquishment of dower and other wifely property rights and privileges described above.
This situation presents the question of whether or not the wife, who in actuality parted with inchoate property rights in excess of $1,700,000 for the present sum of $300,000, transferred property for a full consideration in money or money’s worth. There certainly can be no doubt that when the wife on May 29, 1939, accepted the *656trust and the $300,000 she was the wife of the husband, legally entitled to dower in real and personal property, and possessed of all the other rights of a married woman in Florida; and there can be no doubt that her present, but inchoate, interest in the property then owned by her husband was five or six times greater than the amount of cash paid for it. There can be no doubt that she parted with vested and contingent interests in property considerably in excess of. the cash received, but oddly, and inaptly, the cash has been made the subject of the majority’s inquiry rather than the excess of the value of the wife’s property over the cash.
A contract does not become a gift merely because one of the traders made a better deal than the other. The trade was entered into in good faith and without fraud. We are not here concerned with whether the husband or the wife got the best of the bargain in this transaction. We are to determine whether or not there was full and adequate consideration in money or money’s worth moving between the parties. Consideration may be either of benefit to one or a detriment to the other party to the contract. Those who insist that the wife was merely a donee seem to disregard the consideration that she parted with, and in order to justify themselves in doing this they weigh the transaction before its maturity, or at a time prior to the payment of the $300,000. If it were a gift, it was a gift when payment was made, and not before. That .was after marriage. In order for the agreement to be binding it had to be consummated by marriage and the trust agreement had to be made and money paid after marriage. To the majority the controlling circumstance in fixing the status of the parties was not the payment of the money, but was the signing of a contract to relinquish dower, etc., which, for its effectiveness, was dependent upon the happening of contingencies.
The day on which the $300,000 was paid is the critical date. Nevertheless, the main opinion says: “It is not a case in which one already, a wife sells or relinquishes for a consideration the rights which the law has given her, whether she relinquishes them to her husband or to another. We may well concede that in such a case she gives a money value for what she gets. Such is Lasker v. Commissioner, 7 Cir., 138 F.2d 989. This case is one in which a woman offers herself in marriage, and herself alone, for she had no property and the Florida law retains for her all she may after marriage earn or acquire.”
But the majority overlooked the fact that the pre-nuptial agreement could not have binding effect unless: (1) marriage subsequently took place; (2) the payment of the $300,000 was made within ninety days after marriage; and (3) the trust agreement was also executed by both parties after marriage. The wife got nothing until after she became a wife and possessed of dower and other rights under the Florida law. Then it was that the $300,000 was paid to her—not as a prospective wife but as an actual wife invested with the rights which, in consideration of marriage and the forthcoming payment of $300,000, she had agreed to relinquish. Does anyone doubt that if there had been no marriage the agreement would have been in effect? Can there be any room for argument that the money was neither paid nor payable to her as a feme sole but only as a wife of the' taxpayer? The transaction can only be gauged by the status that existed when the payment was made. The tax is applied to the payment, not to the relinquishment. If it were a gift, it was made on May 29, 1939, after the marriage, and not on March 7, 1939, the date of the initial agreement. If it were a transaction in money or money’s worth, the transaction was effectuated and consummated on the date it was paid, May 29, and the status of the parties on the date of the payment is important in arriving at the tax consequences. The majority has considered the status of the parties on the date of the pre-nuptial agreement as the critical date in disregard of the fact that nothing was paid on the date of the contract on March 7, nor until the wife had something to relinquish. She would not have been bound by any agreement, pre-nuptial or otherwise, for the relinquishment of such rights if the consideration therefor were not paid as provided in the contract, and until the payment the agreement was still ex-ecutory. There can be no doubt of the wife’s right to have rescinded such a contract upon a failure to pay the consideration.
The wife sold her contingent and inchoate rights to one-third of $5,300,000 for $300,000. The husband purchased those inchoate and contingent rights for $300,-000. That is consideration in money’s *657worth—in any language, from whatever end it may be viewed.
The majority based its decision upon the conclusion that the husband received no consideration in money’s worth for his part in the transaction, notwithstanding that he recaptured for himself and his estate an inchoate interest in one-third of $5,300,000 which by operation of law marriage had conferred upon her. The majority opinion recognizes that in Florida a pre-nuptial agreement can be specifically enforced. It recognizes that there is no prohibition against the making of such agreements and that they are not illegal as being contrary to public policy or statute, nevertheless, the majority insisting that the only consideration that the husband received for his $300,000 was a wife, refuses to give effect to the agreement. The view that the husband did not receive for himself or his estate property rights of a value equivalent to, or in excess of, the money which he paid out, is not supported by the law or the facts.
The average man strives not only for the support and appropriate maintenance of his family during his lifetime, but one of the greatest desires of a husband and father is to leave his estate in such shape that those dependent upon him for support and maintenance may after his death find that support in the property which he has accumulated and left to them. A consideration that flows to one’s estate is as much a consideration as if it were enjoyed in his lifetime. Life insurance is a good example. The fact that one accumulates assets for the support and maintenance of his family when he is gone suggests that there was a consideration moving to him in the accumulation of such assets. The $300,000 which Mr. Merrill paid out secured an asset to him and to his estate, worth at that time in excess of $1,700,000 —no mere bagatelle. Mr. Merrill also received benefits that flowed to him rather than his estate, some of which were: (a) the right to transact his business without any veto power on the part of his wife; (b) lessening of the possibility of friction between him, his wife, and her step-children; (c) eliminating the most frequent menace to conjugal and family congeniality. Merrill previously had financial difficulties with a prior wife who had sought to have large properties awarded to her. “A burnt child dreads the fire”, and he doubtless deemed it worthwhile to buy and pay for insurance against the third wife demanding large alimony as had the second. It is not difficult to embrace his theory. The acquisition, by money or money’s worth, of family, conjugal, and financial congeniality, does not characterize sums reasonably expended therefor as a “gift”. If all the sums spent by husbands in this endeavor were considered gifts and taxable as such, few other forms of taxation would be required to run the government and to pay the war debt. Reasonable investments in property that are conducive to domestic tranquillity and are helpful in business are not necessarily gifts.
It appears beyond question that the husband or his estate was acquiring inchoate rights in one-third of an estate of $5,300,-000 for the present sum of $300,000, and if the husband trimmed the wife in the deal no tax consequences follow for that reason. The wife doubtless preferred a bird in the hand to two in the bush.
The fact that the Legislature might change the law; that the husband might lose his wealth; that he might move to another state where the marital rights of the wife were different, which possibilities are advanced to support the conclusions of the main opinion, are but arguments in support of the practicality of purpose of the parties to put such contingencies at rest once and for all time. The attainment of financial certainty and the elimination of domestic inharmony due to financial conflicts are considerations of so great a price—a consummation so devoutly to be wished—that husbands and wives, when trading to that end, should not be subjected to the gift tax merely because they did not attempt to swap penny for penny.
The decision of the lower Court was correct and should have been affirmed.