(dissenting).
Section 302(c) of the Revenue Act of 1926 as amended provides that the value of the gross estate of the decedent shall include the value of real property “ * * * To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death,- including a transfer under which the transferor has retained for his life or any period not ending before his death (1) the possession or enjoyment of, or the income from, the property or (2) the right to designate the persons who shall possess or enjoy the property or the income therefrom *
Decedent executed and acknowledged a deed of gift covering real property in Texas to petitioner on February 25, 1931. A deed of gift from petitioner to decedent was prepared at the same time as the first deed mentioned, but it was not executed and acknowledged until April 4, 1931. The first deed was recorded, but the second deed was given to one Cosgrave, an attorney, to hold and to record in the event that petitioner predeceased decedent. Upon decedent’s death, Cosgrave and petitioner were appointed joint executors of decedent’s will. Petitioner filed on January 22, 1935, an estate tax return, but did not include the value of the Texas real property, and Cosgrave refused to execute that return. Cosgrave filed an estate tax return on January 22, 1935, in which he stated that the deed of gift made by decedent was “a transfer in contemplation of or intended to take effect in possession or enjoyment at or after her death”.
The Board found that the transfer of the property to petitioner by decedent “was intended to take effect in possession at or after death”. Determination of the intent with which an act is done is the determination of a question of fact.1 The statement in the return above quoted is not, therefore, a conclusion of law, but the statement of a fact. The record discloses no objection to that evidence. Such evidence is substantial and supports the finding of the Board. It, therefore, is unnecessary to consider whether the rule of privileged communications is a “rule of evidence” and if so, whether it is applicable to the oral testimony of Cos-grave, because the Board’s finding is supported by substantial evidence in any event.
The Board’s decision should be affirmed.
Flack v. Holtegel, 7 Cir., 93 F.2d 512; Updike v. Commissioner, 8 Cir., 88 F.2d 807. Compare: Commissioner v. Cecil De Mille Productions, 9 Cir., 90 F.2d 12.