I concur in the results.
The quotation which Mr. Justice PRATT takes from UnitedStates v. Wells, 283 U.S. 102, 117, 51 S.Ct. 446, 451,75 L.Ed. 867, omits this sentence which is, to me, of considerable significance:
"It is contemplation of death, not necessarily contemplation of imminent death, to which the statute refers."
The Thompson case, 72 Utah 17, 269 P. 103 seems to adopt the rule that to make a gift inter vivos "in contemplation of death" it must be in contemplation of a death that is imminent or near at hand or believed by the donor so to be — it must be an "impending" death. See 72 Utah at pages 50, *Page 401 62, 269 P. at pages 115, 119, and Note, 75 A.L.R. 545. I believe the intention of the legislature was that "contemplation of death" should mean that view of death which one has when he believes that death in a definite manner or from a definite cause or condition has been indicated for him or is likely and is within his contemplation as the impelling motive when the gift is made, whether he regard that death as "imminent," "threatening," "near at hand," or "impending" or not. The manner, cause or condition need not be one to which has been or can be assigned a name or description. If the Thompson case established a different rule I think it should be modified.
This proceeding to determine the amount of tax owing is equitable and our review is of all the evidence and to determine the preponderance. In re Thompson Estate, supra, at page 36 of72 Utah, 269 P. at page 109. While I think advanced age makes the presumption of contemplation of death more difficult to rebut, I cannot say that the evidence here does not sustain the findings and judgment of the district court that these gifts were not made in contemplation of death as meant by Sec. 80-12-4. But I feel that each such case must be determined on its own facts, seeUnited States v. Wells, supra, at page 119 of 283 U.S. 51 S.Ct. at page 452, 75 L.Ed. 867.
While in the rationale of certain cases illustrations may be very helpful as a guide to understanding, in cases of this nature they may so nearly fit actual situations which may come before us as to be in the nature of a commitment. I doubt the wisdom of using them here. One illustration is of a man to whose attention the uncertainty of life has been dramatically brought by an accident without injury. Such would only appear to be the general contemplation of death which the death of a friend might bring more vividly into consciousness but would not seem to be covered by Sec. 80-12-4. *Page 402