(concurring).
I concur in the affirmance of the judgment of the District Court for the following reason.
Where a settlor makes an inter vivos transfer of property with remainders over to a class none of whom is in being at the time of the transfer and provides that, upon ultimate failure of the class, the property shall pass as the settlor may by will appoint, it is at least as reasonable to infer that the property will ultimately pass according to the settlor’s appointment as it is to infer that it will pass by virtue of the transfer to then nonexistent remaindermen. In such circumstances, I fail to see how- the taxpayer can be thought to have overcome the presumptive correctness of the Commissioner’s determination that the transfer, when made, included a gift of the corpus in remainder to take effect in possession or enjoyment at or after the transferor’s death by virtue of his appointment.
That rules the instant case. The facts here show that the settlor made an inter vivos transfer of property, reserving to herself a life estate (the transfer antedated the Joint Resolution of 1931), with succeeding life estates in her two minor and unmarried daughters and remainders over in the corpus to the descendants of the daughters or either of them with the further provision that, in the event of the death of both daughters without leaving surviving descendants, the corpus should be paid to such persons as the settlor should by will appoint.