(dissenting).
All four trusts were executed within a few days of each other. The trust of Francis R. -Dravo and that of his wife, Fanny M. Dravo, were executed on January 17, 1931; the trust of Ralph M. Dravo and the trust of his wife, Jane M. Dravo, were executed on January 15, 1931. All four trust indentures are very similar in terms. Up to and including the end of Section 1 of Article Second, the words of the four indentures except as to names of respective creators and spouses, are identical. Each indenture contains (as the second paragraph of Section 1 of Article Second) the following clause: “The Trustees may advance portions of the principal hereof to or for the use or benefit of the *101Creator’s said husband [wife], at such times, in such amounts and for such purposes as the said Trustees in their opinion may deem advisable.” The two Francis R. Dravo trusts provide in the section immediately following (Section 2) : “After the death of the Creator’s husband [wifc[ * * *, the Trustees shall divide the Trust Estate then remaining in their hands into three (3) equal parts * * * ” for distribution in accordance with the terms of the trusts. The two other trusts provide that after the death of the designated spouse the trustees shall pay to Frank Pet-tit, the creators’ nephew, the sum of $5,000 and then shall distribute one-third of all the stock of the Dravo Management Company (which never came into existence) and one-third of all the common stock of the Dravo Corporation “then remaining 'in the hands of the Trustees * * in accordance with the provisions of the trust indentures.
The respective husbands and wives transferred identical property in trust. Each trust instrument provided that the income from that trust should be paid to the spouse of the creator for life in such amounts as the trustees should determine. Francis R. Dravo and his brother, Ralph M. Dravo, and the Bank of Pittsburgh National Association were named as trustees. The hank resigned as trustee of each of the trusts and an individual trustee was then substituted. It is admitted by the petitioner and it was found by the Board that one of the controlling purposes for the formation of the four trusts was to give ultimate control of the Dravo Corporation or its constituent companies to the group of men associated with the Dravos in building up the business. None of the trusts was executed in contemplation of death.
It will be noted that each beneficiary of a trust is the creator of a trust for the benefit (at least insofar as the life estates are concerned) of his or her respective benefactor. In view of the fact that each trust for husband and wife was created simultaneously I think that we can assume that each grantor made his or her transfer in trust in consideration of the transfer of securities made by the spouse. As was stated by the Circuit Court of Appeals for the Second Circuit in the case of Lehman v. Commissioner, 109 F.2d 99, 100, Section 302(d) “ * * * covers a case where the decedent by paying a quid pro quo has caused another to make a transfer of property with enjoyment subject to change by exercise of such power [to alter, amend or revoke] by the decedent”, citing 52 Harvard Law Review 1015, and Scott on Trusts, Section 156.3.1 There is no doubt that where the grantor retains the right to effect a change in the enjoyment of the trust, through the exercise of power either alone or in conjunction with any person to alter, amend or revoke the trust, the corpus is includible in the estate of the decedent for tax purposes. Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397. If the power (to he exercised by two of the trustees for their own benefit as cestuis) vested in the trustees in the Dravo trusts to advance to each life-tenant cestui portions of the corpus of each trust is the equivalent of the right given to the life-tenant cestuis in the Lehman case to withdraw funds from the corpora of the Lehman trust, I think the corpora of the trusts sub judice are includible in the estates of the decedents and taxable as such.
In the Lehman case the decedent had the right to “withdraw” $150,000. In the cases at bar the trustees, two of whom were the Dravo brothers, had the right to “advance” portions of the corpora to each other as beneficiaries. I think that the identities of the Dravo brothers as trustees and as ces-Uiis cannot be set apart or distinguished. They could have advanced portions of the corpora to themselves and certainly whether they did so as cestuis or trustees can have no great significance in determining the applicability of the statute under the circumstances of the case at bar.
The majority of the court are of the opinion that the word “advance” used in the trust indentures means to loan against the income due the life-tenants. No sum can become actually due to the life-tenants under the trusts because the amounts to be paid to them are left in the discretion of the trustees. The word “advance” has many meanings. It may mean to pay, to give, to loan, or to furnish, depending upon the context in which it is used. The indentures do-not state that trustees may make advances against income to the life-tenants as is usually the case when such power is intended. Indeed in the cases at bar the trustees could have put the life-tenants *102upon a dollar-a-year basis had they desired to do so. There is literally no limitation upon the powers of the trustees set up in the clauses relating to advances.
In the light of these circumstances the words in the Francis R. Dravo trust next following the clause relating to advances, i. e., the words to the effect that the trustees upon the death of the life-tenant shall divide all of the trust “then remaining in their hands” suggest that the sums advanced under the preceding clause were nothing more than withdrawals which the cestui was not to be charged with returning to the corpus of the trust, the trustees themselves not being surchargeable by reason of advances made negligently to a cestui unable to return an advance.
It follows that the corpus of the trust is includible in the decedent’s estate for the equivalent of a right to withdraw the principal of the trust or invade its corpus is demonstrated. While the Ralph M. Dravo trust is not quite similar in form and provides for the gift to Pettit, phraseology very like that in the Francis R. Dravo trusts occurs as to the disposition of shares of stock of the Dravo Corporation “then remaining in the hands of the trustees.”
I therefore conclude that the corpora of the trusts are includible in the estates of the respective decedents and that the decision of the Board of Tax Appeals should be reversed and the cause remanded for rede-termination of the tax.
“A person who furnishes the consideration for tlie creation of a trust is the settlor, even though ill form the trust is created by another.”