#### ETTA M. KLEIN, FORMER ADMINISTRATRIX OF THE ESTATE OF SOLOMON KLEIN, DECEASED, AND ALSO INDIVIDUALLY AMY K. EISENDRATH, BERNICE K. FRIEDLANDER, AND LAWRENCE KLEIN v. THE UNITED STATES1

[No. J-124.

Decided June 2, 1930]

*Mr. Benjamin B. Pettus*for the plaintiffs. *Mr. Edward Clifford*and Oolladay, *Clifford <& Pettus*were on the brief.

*Mr. Fred K. Dyar,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant. *Mr.. W. T. Sdbme*was on the brief.

1

 Certiorari applied for.

*154LittletoN, Judge,

delivered the opinion of the court:

Plaintiffs contend, first, that under section 402 (c) of the revenue act of 1918, 40 Stat. 1097, Solomon Klein at the time of his death had no interest in the property in question which took effect in possession or enjoyment at or after that event; that the deed of conveyance transferred to his wife title to the lands in fee simple; that the conveyance was complete and irrevocable, and that the grantor retained no beneficial interest in the property conveyed but only a possibility of an interest through reversion; secondly, that if the decedent had an interest in the property at death, the same was not taxable, for under *Nichols*v. Coolidge, 274 U. S. 531, the revenue act of 1918 is unconstitutional in so far as it undertakes to tax transfers made before its passage.

By the terms of the deed here under consideration the decedent, until his death, had a vested reversion in fee to the property described subject only to the life estate therein provided for his wife, and to the possibility of its being divested by his death during her lifetime. The grantee had no more than a life estate in the property with a contingent remainder, which remainder was based upon a condition precedent, i. e., the death of her husband during her lifetime. Prior to the grantor’s death the grantee did not and could not have a vested estate in remainder. Under the deed in question the possession or enjoyment of the rights and benefits of ownership of this remainder in the grantor could in no event be hers until her husband’s death; the deed therefore *155to the extent of the value of this remainder interest reserved was a transfer intended to take effect in possession or enjoyment at the decedent’s death within the meaning of section 402 (c) of the revenue act of 1918. The deed here in question was not an absolute conveyance forever in fee simple by the husband with a mere possibility of reverter but was a deed which expressly reserved and excepted the reversion and conveyed only a life estate to the wife with a contingent remainder, upon a condition precedent, i. e., the decedent’s death during her lifetime. It is clear that it was the intent of the decedent, expressed in unambiguous language in the deed, that his wife should have only a life estate in the property during his lifetime and that only in case of his death during her lifetime should she have a remainder in fee in the land therein described. It appears to be well settled by the law of Illinois that such a condition precedent creates only a contingent remainder under the laws of that State. *Bayley*v. *Strahan,*314 Ill. 213, 145 N. E. 359; *Wood*v. Chase, 327 Ill. 91, 158 N. E. 470; *Meldahl*v. *Wallace,*270 Ill. 220, 110 N. E. 354; *Golladay*v. *Knock,*235 Ill. 412, 85 N. E. 649; *Haward*v. *Peabody,*128 Ill. 430, 21 N. E. 503.

The Commissioner of Internal Revenue included in the decedent’s gross estate the value of Iris reversionary interest determined by deducting from the value of the property described in the deed, the value of the life estate of Etta M. .Klein, as the interest of the decedent in the property which, under the deed, constituted a transfer and which took effect and passed to the wife in possession and enjoyment at his death. In this we think the commissioner was correct. The interest of which the decedent made a transfer intended to take effect in possession or enjoyment at his death was his entire vested. reversion of the remainder in the property described in the deed. Until his death, however, the transfer was incomplete. Until that time the whole legal title to the fee, subject only to his wife’s life estate, was vested in him •as well as his vested remainder in fee of the entire reversion-ary interest. Until his death the possession or enjoyment by the decedent’s wife of his vested remainder in fee was postponed. The decedent’s death was the event which made the transfer complete and effective, and secured to Etta M. Klein *156the possession and enjoyment of the property contemplated by the statute. The acquisition by the wife of the full benefits of ownership of interest which remained in the decedent became complete only upon his death. It was, therefore, a transfer at his death. *Saltonstall*v. *Saltonstall,*276 U. S. 260; *Chase National Bank*v. *United*States, 278 U. S. 327; *Reinecke*v. *Northern Trust Co.,*278 U. S. 339; *McCaughn*v. *Girard Trust Co.,*11 Fed. (2d) 520; *Dean*v. *Willcutts,*32 Fed. (2d) 374. We are of opinion, therefore, that the decedent had an interest § in the property which was the subject of the instrument creating a life estate in his wife,, the transfer of which interest took effect and was complete at his death, and that the value of this interest was a proper-item to be included in the gross estate.

Belying upon *Nichols*v. *Coolidge, supra,*and the decisions of the United States Board of Tax Appeals in *Edward H. Alsop, Executor,*7 B. T. A. 848; *James Duggan, Executor, 8*B. T. A. 482; *David W. Crews Estate,*8 B. T. A. 949; and *Edgar M. Morsman, Jr., Administrator,*14 B. T. A. 108, the plaintiffs insist that inasmuch as the instrument in question was executed in July, 1918, the revenue act of 1918 in so far as it undertakes to tax a transfer made-before its passage was unconstitutional. We think, however, that the decision in *Nichols*v. *Ooolidge, supra,*goes no further than to hold that where a donor has made a *completed gift inter vivos*not in contemplation of death and prior to the enactment of the act under which the tax is sought to be exacted and where by such transfer he has divested himself of all further control or any other disposition of the property than that provided in the instrument of transfer, any attempt to tax such a gift merely because the transfer was intended to take effect in possession or enjoyment at or after death is arbitrary, capricious, and amounts to confiscation. In such cases there would be no transfer by death, but the property would pass under the provisions of the deed of gift or trust.

In that case Mrs. Ooolidge and her husband had executed an instrument in 1907 in which they conveyed property in trust, the income to be paid to them during the life of either of them with remainders over to their sons. Later, in *1571917, four years prior to the death of either of them, they assigned all their interest in the income and in the fund itself to their sons, the remaindermen. No claim was made that the gift *inter*vivos, thus completed, was made in contemplation of death and as they had divested themselves of every interest in the property, the value of the property transferred by Mrs. Coolidge was held to have been improperly included in her gross estate. In so holding the court said:

> “ The statute requires the executors to- pay an excise ostensibly laid upon transfer of property by death from Mrs. Coolidge to them but reckoned upon its value plus the value of other property conveyed before the enactment in entire-good faith and without contemplation of death. Is the-estate, thus construed, within the power of Congress?

> :js ^ ❖ H* ***

> “ * * * And we must conclude that section 402 (c) of the statute here under consideration, in so far as it requires that there shall be included in the gross estate the value of property transferred by a decedent prior to its passage merely because the conveyance was intended to take effect, in possession or enjoyment at or after his death, is arbitrary, capricious, and amounts to confiscation.”

The language quoted is very broad but we think in view of subsequent decisions of the court its application to “ property transferred” refers to *completed transfers*of property where no interest of value is transferred by death. The-transfer there involved, if not complete and beyond control of the donors in 1907, had been completed four years before the death of Mrs. Coolidge. She had divested herself of every interest in the property at that time and neither possession nor enjoyment was postponed until her death. This-view finds support in subsequent decisions of the court in *Chase National Bank*v. *United States, supra,*and *Reinecke*v. *Northern Trust Co., supra;*in the latter case the-court in referring to two trusts created in 1903 and 1910, respectively, and distinguishing the *Coolidge case,*at page 345, said:

> “As to the two trusts, it is argued that since they were-created long before the passage of any statute imposing an. estate tax, the taxing statute if applied to them is unconstitutional and void, because retroactive, within the ruling of *158*Nichols*v. *Coolidge,*274 U. S. 531. In that case it was held that the provisions of the similar section 402 of the 1918 act, 40 Stat. 1097, making it applicable to trusts created before the passage of the act was in conflict with the fifth . amendment of the Federal Constitution and void, as respects transfers completed before any such statute was enacted. But in *Chase National Bank*v. *United States,*decided this day, *arde,*p. 327, the decision is rested on the ground, earlier suggested' with respect to the fourteenth amendment in *Saltonstall*v. Saltonstall, 276 U. S. 260, 271, that a transfer made subject to a power of revocation in the transferror, terminable at his death, is not complete until his death. Hence section 402, as applied to the present transfers, is not retroactive, since his death followed the passage of the statute. For that reason, stated more at length in our opinion in *Chase National Bank*v. *United States, supra,*we hold that the tax was rightly imposed on the transfers of the corpus of the two trusts and as to them the judgment of ■ the court of appeals should be reversed.”

At pages 346-348, the court in connection with certain trusts created in 1919 which were held not to be taxable as ..a part of the estate pointed out that the reserved powers of management did not save to decedent any control over the economic benefits or the enjoyment of the property and that the shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon . as the trust was made, and said—

> “ The two sections, read together, indicate no purpose to ■ tax completed gifts made by the donor in his lifetime not in contemplation of death, where he has retained no such control, possession, or enjoyment. In the light of the general ■.purpose of the statute and the language of section 401 explicitly imposing the tax on net estates of decedents, we think 'it at least doubtful whether the trusts or interests in a trust intended to be reached by the phrase in section 402 (c) ‘ to take effect in possession or enjoyment at or after his death,’ include any others than those passing from the possession, enjoyment, or control of the donor at his death and so taxable as transfers at death under section 401.”

In our opinion the same rule as was applied to the trusts -created in 1903 and 1910 must be applied where, by the reservation of a remainder or reversion in fee, as in this case, in the grantor or donor until his death, the transfer is mot complete; and the act in force at the date of the deced*159ent’s death taxing the interest which passes at death is-neither retroactive nor unconstitutional. Cf. *Cooper*v. *United*States, 280 U. S. 409, decided February 24, 1930, and *May et*al., Executors, v. Heiner, 281 U. S. 238, decided April 14, 1930.. The date of the execution of the trust, or conveyance, is not controlling but the important thing is whether under such instruments there remains in the decedent any interest in the property which passes at his death... In this case we think there was such an interest.

Plaintiffs are not entitled to' recover and the petition is dismissed. It is so ordered.

Williams, *Judge;*Green-, *Judge;*and Booth, *Chief*Justice, concur.