(dissenting).
Judge Frank has aptly said that “some judicial legislation is one of the unavoidable facts of life.” Nevertheless he felt it necessary to couple this with the warning that “judicial law-making should always be cautiously employed and should be severely restricted in scope.” New England Coal & Coke Co. v. Rutland R. Co., 2 Cir., 143 F.2d 179, 189. So Judge Learned Hand puts it thus: “It is always a dangerous business to fill in the text of a statute from its purposes, and, although it is a duty often unavoidable, it is utterly unwarranted unless the omission from, or corruption of, the text is plain.” Harris v. C. I. R., 2 Cir., 178 F.2d 861, 864 (the reversal in Harris v. C. I. R., 340 U.S. 106, 71 S.Ct. 181, 95 L.Ed. 111, is on other issues only). Here the obstacles to rewriting legislation are many and serious, so much so that I feel we must refrain from the attempt. The opinion frankly discloses how difficult it is to find a corruption of the text at all plain — a difficulty measurably increased by the several successive tries at some form of remedial legislation. Thus we are forced to assume congressional inability to express its intent not once, but thrice, and over a four-year period. But more, the legislative intent or desire to advantage this one particular taxpayer seems quite conspicuously unproved, if not actually disproved. And finally the very basis for any relief at all is, I suggest, wholly lacking on the merits, since the ultimate beneficiaries here were quite obviously only contingently named; until Field’s death made the gifts absolute and “shed the possibility of reversion,” C. I. R. v. Estate of Field, 324 U.S. 113, 116, 65 S.Ct. 511, 512, 89 L.Ed. 568, 159 A.L.R. 230, there was no completed transfer. Thus the interests here were properly taxed and should remain so.
The chronology of events must be kept in mind. Field created his trust in 1922, long before the abberation of May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 288, 74 L.Ed. 826 (that a remainder after a reversionary life estate in the donor was not taxable as an interest intended to take effect “in possession or enjoyment” at the donor’s death), was started on its way in 1930. This bred untold confusion until, after a series of limiting decisions, it was finally overruled in C. I. R. v. Estate of Church, 1949, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288. Field died in 1937 at the age of 52. The estate taxes in question were paid in portions in 1939, 1940, and 1942, with final settle*254mént in 1945 after the adverse decision in C. I. R. v. Estate of Field, supra, 324 U.S. 113, 65 S.Ct. 511, 89 L.Ed. 568, 159 A.L.R. 230. The case has been quite literally at an end ever since 1945. The impetus for taxpayer relief came only as a result of the 1949 decisions involving other litigants and (as I discuss more below) other problems. The first statute in 1949 does not help; neither does the third statute in 1953. Only by a favoring interpretation of the 1951 statute can the plaintiff get any help. To me this background does not suggest any impetus toward such favoring interpretation; on the contrary, it lends emphasis to the settled policy of narrowly construing special tax exceptions and selective tax relief. This view has' here practical support also in the fact that, as shown by correspondence disclosed in the briefs, appellant’s attorney sought special and clear-cut relief from the appropriate congressional committees before the 1953 legislation, with quite adverse results, as the events show.
Since the important statutes are quoted in the opinion herewith, I can make my points as to them somewhat summarily. There is nothing in the crucial 1951 statute to exempt the tax claims there permitted from the two general well-known and long existing bars of the three-year statute of limitations and of any claim of refund once the jurisdiction of the Tax Court had been invoked. I.R.C.1939, §§ 910, 911, now I.R.C.1954, §§ 6511, 6512. But it is highly significant that both the 1949 and the 1953 statutes — in sharp contrast to this statute and in accordance seemingly with general custom — do contain express provisions negativing the operation of such bars. My brothers, in discussing the 1953 legislation, voice some strictures against implied repeals which I deem much more appropriate as applied to the 1951 statute. For the natural conclusion from this wording is that claims under this statute were subject to the usual provisions of bar. The only argument deduced to the contrary is that this would make the 1951- relief measure a dead letter. This is because it would then apply only to cases pending in the administrative process or in the courts; and, it is said, these must be comparatively few. The latter conjecture, however, is the sheerest guess; we have absolutely no information on the point. But we do know that pressure for tax relief of varied forms was most heavy and persistent. See Bittker, The Church and Spiegel Cases: Section 811(c) Gets a New Lease on Life, 58 Yale L.J. 825, 855-864 (1949), ably criticizing the extensive proposals of the American Bar Association and others and arguing that the case for relief was not proven; and see also the later article, Bittker, Church and Spiegel: The Legislative Sequel, 59 Yale L.J. 395 (1950), suggesting the confusion created by the first modest response. We know from the reported decisions that these cases were pending; the pressures just noted suggest that there were more which were unreported in formal court eases. But be this as it may, the legislation was obviously a response to these claims, with at least some limitations in mind; how is it possible on this scanty background and against the language itself to deduce a much larger purpose than merely to grease the (or some of the) squeaking wheels ?
Pursuing the analysis further I fail to see why the 1953 Act does not cover the matter quite thoroughly; it is in effect as though Congress made another try to settle all ambiguities. As the Committee report quoted in note 16 of the opinion makes clear, the statute was planned not “to open the statute of limitations” [felicitous and revealing expression] to any great extent and only to cases in litigation at the time of the Church decision. I cannot follow my brothers in holding the statute not here applicable as applying to transfers “involving the retention of a life estate, the reservation of a minute reversionary interest, or both.” Here there were clearly both; true, as I shall now point out, the reversionary interest was much more than minute, but that makes the exclusion from the relief provision all the clearer.
*255And that leads me to the last point as to the meaning of the interests created by the Field trust. Here I do feel that my brothers have gone astray in what is perhaps the nub of the case. The question is whether Field’s death was a condition precedent to the taking of the corpus by Field’s sister and the issue of the deceased brother as such condition was defined in the first paragraph of Art. 17 of Regulations 80 (1937). And I think my brothers have failed to note the significance of several provisions of this detailed trust. First is to be noted the definite provision that the corpus reverted to the decedent (who had the income for life) if the two nieces died before he did. This is well stated by Justice Murphy in C. I. R. v. Estate of Field, supra, 324 U.S. 113, 115, 116, 65 S.Ct. 511, 512, 89 L.Ed. 568, 159 A.L.R. 230:
“The error of the court below is self-evident from our discussion in the Fidelity-Philadelphia Trust Co. case [324 U.S. 108, 65 S.Ct. 508, 89 L.Ed. 782]. The trust here was limited in duration to the lives of the decedent’s two nieces. But if both nieces died before the decedent, the corpus would have been paid to the decedent rather than to the beneficiaries named in the trust instrument (in this instance the decedent’s sister and the issue of his deceased brother). Thus until decedent’s death it was uncertain whether any of the corpus would pass to the beneficiaries or whether it would revert to the decedent. Decedent retaining a string attached to all the property until death severed it, the entire corpus was swept into the gross estate and was taxable accordingly.”
Thus the only way in which the contingency might be resolved is death of the donor; and the gift over becomes absolute only then. But other provisions of the will necessarily lead to the same result; the gift over to the actual beneficiaries was only the last of still other possibilities and was so stated in the trust. If the donor died before the nieces leaving issue then the corpus went to the issue. Of course he was both legally and actually capable of having issue until his death. The donor then reserved power either by will or by instrument lodged with the trustee to reduce or cancel the corpus of the trust. And the ultimate provision over, which was actually effective, was to take effect only if these other contingencies had not operated. It would seem clear that there was no opportunity for the operation of the second paragraph of Art. 17, Reg. 80, to hold the gift vested subject only to being divested on the operation of a condition subsequent. I take it that no rule of interpretation allows such a conclusion — i. e., vested subject only to be divested — to the last and thus the most remote of several alternative contingent gifts. Indeed, the normal preference is for the first of two stated limitations, while the “occurrence is [interpreted as] a condition precedent of the future interest limited by the second-stated limitation.” 3 Restatement, Property § 277 (1940); Simes, Law of Future Interests § 351, and cf. §§ 78, 79 (1936). Under the New York law — which controls the meaning of the limitation, see Estate of Spiegel v. C. I. R., 335 U.S. 701, 69 S.Ct. 301, 93 L.Ed. 330 — the result would be the same. Thus there are numerous New York cases finding contingent remainders where the class of beneficiaries as defined cannot be ascertained until death of a life tenant. See, e. g., In re Fischer’s Will, 307 N.Y. 149, 160, 120 N.E.2d 688, 694, and cases cited; N. Y. Real Property Law, McKinney’s Consol.Laws, c. 50, § 40; N.Y.Personal Property Law, McKinney’s Consol.Laws, c. 41, § 111
*256Thus the gift here comes within the exact terms of the condition precedent specified in the first paragraph of the Regulation. It not only does not and cannot be made to come within the language of the second paragraph, but actually presents the converse of the gift there visualized. Instead of a gift to others than the donor, with a slight string contingently back to him,- e. g., a reverter back if the named takers did not survive him, the provision here is that the donor and his issue take in all cases unless neither he nor his issue has survived and he has not abrogated the trust. And going back to the controlling words of the statute, the gift made here is surely one intended to take effect in possession or enjoyment at the donor’s death. It is thus substantially similar to that in Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996, and unlike those in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35.
My brothers do not discuss this issue in the necessary terms of condition precedent or subsequent, but content themselves with a quotation from C. I. R. v. Estate of Church, supra, 335 U.S. 632, 642, 69 S.Ct. 322, 93 L.Ed. 288, which, I submit with deference, is subject to misinterpretation when taken out of context. The Court was there indulging in caustic comment upon statutory interpretations which would allow defeat of the estate tax by the interposition of a simple trust and the resulting “easy chore” for “one skilled in the ‘various niceties of the art of conveyancing.’ ” And it points out the express overruling of this conclusion as early as 1940. It would be anomalous, indeed, if this summary analysis made to condemn should some years later be employed as the basis —and the sole basis — for defeating the revenue here, and indeed in all trusts, however simple. The quotation should not be called upon for any such duty. It was in fact a bit of overstatement justified by some of the language of the criticized opinions; for in both those cases the initial transfer was such as to pass the beneficial interest irrevocably from the grantor except for the slight chance of reversion on condition subsequent. The Regulation was drawn in terms of the actual transfers and naturally not in the terms of these later criticizing dicta. So here I think it indisputable that the remainder to the actual takers only became assured when all contingency was “shed” by the don- or’s death; and hence under the Klein case and the first paragraph of Art. 17, Reg. 80, it was at all times to be included in the donor’s gross estate.
For these several reasons the refund was correctly denied.
. Among other illustrative cases the following may be cited: In re Bendheim’s Estate, 124 Misc. 424, 209 N.Y.S. 141, affirmed 214 App.Div. 716, 209 N.Y.S. 794; In re Bristol’s Estate, 147 Misc. 578, 264 N.Y.S. 349; Rasquin v. Hamersley, 152 App.Div. 522, 137 N.Y.S. 578, affirmed 208 N.Y. 630, 102 N.E. 1112; In re Dietz’ Will, Sur., 42 N.Y.S.2d 708, affirmed 266 App.Div. 755, 41 N.Y.S.2d 917; In re Baldwin’s Will, Sur., 139 N.Y.S.2d 413; In re Jutkovitz’ Will, Sur., *256139 N.Y.S.2d 120; In re Robinson’s Estate, 187 Misc. 489, 62 N.Y.S.2d 373. Here we are dealing with a trust deed, not will, and tbe contingency is all tbe more apparent.