#### CENTRAL HANOVER BANK AND TRUST COMPANY, AS TRUSTEE UNDER TRUST CREATED BY CLARE G. JOHNSON, DECEASED, v. THE UNITED STATES

[No. 46003.

Decided February 5, 1945]

*211
      *Mr. Harold L. Herrich*for the plaintiff. *Mr. Huber B. Lewis*was on the brief.

*Mrs. Elizabeth B.*Davis, with whom was *Mr. Assistant Attorney General Samuel O. Ciarle, Jr.,*for the defendant. *Mr. Robert N. Anderson*and *Mr. Fred K. Dyar*were on the brief.

Whitaker, Judge,

delivered the opinion of the court: ■

This case is before us on plaintiff’s motion for a new trial. On the former hearing both at the bar and in their briefs both parties argued the case on the assumption that if Mrs. Johnson’s three children died without issue before she did, the trust would fail and the property, therefore, would revert to her. We were accordingly of the opinion, since Mrs. Johnson must have known that, or was at least chargeable with that knowledge, that she must have intended to reserve that possibility of reverter.

But, now, on motion for a new trial plaintiff earnestly argues that under the law of New York, in which State Mrs. Johnson resided when the trust instrument was executed, the property would not have reverted to her, but would have vested absolutely in the last surviving remainder man even if he had died before the settlor, or that, it would *212have been divided equally between the estates of the three remainder men if all had predeceased the settlor. It cites several New York cases holding, in the case of wills, that the remainder interest vests absolutely in the last surviving remainder man, even though that last survivor dies before the life tenant. *Matter of*McCombs, 261 App. Div. 449; aff. 287 N. Y. 557; *Matter of*Hadden, 178 Misc. 939; *Matter of*Stephanie, 161 Misc. 803; aff. 252 App. Div. 705. Cf. *Jarman on*Wills, 7th Ed. p. 1340.

There may be some doubt that these decisions are equally applicable to remainder interests created by trusts, but they may be, and Mrs. Johnson may have thought that they were when the trust instrument was executed. If she did, even though she may have been mistaken, it cannot be said that she “intended” to reserve any interest in herself, even the possibility of a reverter. The Act taxes only those transfers which are *Hntended*to take effect in possession or enjoyment at or after * * * death.” (Italics ours.) Unless she “intended” to reserve some estate in herself, other than the life estate, the transfer does not come within the terms of the taxing act, even though she did not succeed in actually divesting herself of all possibility of an interest therein.

Our conclusion on the former heaping that she had “intended” to reserve this possibility of a reverter was based on the statement of the parties that this was the necessary result of the trust instrument under the New York law. Therefore, we concluded, Mrs. Johnson must have “intended” this result. If this was not the necessary result under the law, as now appears, then such an intention is not necessarily to be implied.

In all cases heretofore decided the intention to make such a reservation was expressed. There was no doubt of an intention of reserving something that should pass only at death. But, we do not suppose that it is necessary that such an intention be expressed; it may as well be implied from all the facts and circumstances.

However, we are of opinion that the facts of this case do not disclose such an intention, but rather negative it. The «property Mrs. Johnson had, she had acquired from her deceased husband; she was about to remarry, and she evidently *213wanted to insure that the children of her former marriage would succeed at her death to the property that had been their father’s, without having to divide it with her husband-to-be or any other children she might have. She was 42 years old and the children were 11, 19, and 20, respectively. We doubt she ever thought about the possibility that she might survive her children and their children. To say the least, that possibility was quite remote and might easily have been overlooked. But if she did think of it, did she think the property would come back to her in that event or go to the heirs of the survivor of her children and their issue? We do not know, but we do feel sure under the facts that she thought she was completely disposing of the property, save only for a life interest in it which she retained for herself.

Convinced that this was her intention, we do not think it can be said that this was a transfer “intended to take effect in possession or enjoyment” at her death. We are of opinion she meant to dispose of the remainder interest completely, in her lifetime, leaving nothing of the remainder to vest only at her death.

Plaintiff’s motion for a new trial is granted. The findings of fact heretofore filed on November 6, 1944, are adopted and confirmed, but there is added as finding 12 the following;

> 12. The transfer of the property in trust, as set out in finding 3, was not intended to take effect in possession or enj oyment at the death of the settlor.

The former opinion is modified in accordance with the foregoing, but the former conclusion of law is withdrawn, and the following is substituted therefor:

> CONCLUSION 03? LAW

> Upon the findings of fact heretofore filed and as amended herein, the court concludes as a matter of law that the plaintiff is entitled to recover of the defendant the sum of $148,696.03, together with interest as provided by law.

> It is therefore adjudged and ordered that the plaintiff recover of and from the United States the sum of one hundred forty-eight thousand six hundred ninety-six dollars and three cents ($148,696.03), together with interest as provided by law. It is so ordered.

Whalbt, Chief Justice, concurs.

*214Littleton, *Judge,*

concurring. I concur in the foregoing opinion, but I would go further and hold on the record in this case that, notwithstanding the decisions of the New York courts referred to, plaintiff would be entitled to recover since the transfer when made was absolute and irrevocable, and any possibility of reversion to the grantor through the prior death of the named beneficiaries, including their issue, was too remote to justify the taxing authorities implying an intention on the part of the donor to reserve a reversionary interest of such a character as would justify the Government in including the value of the trust property in the gross estate for the purpose of the excise tax upon a transfer “intended to take effect in possession or enjoyment at or after death” within the meaning of the taxing act.

I think the rule announced in *Helvering*v. Hallock, 309 U. S. 106, where a reversionary interest was explicitly retained, should not be extended by implication and without proof that such was the intention of the donor.

Madden, Judge,

dissenting:

In our original decision we followed the assumption of both parties that the grantor continued, after the conveyance in trust, to have an interest in the corpus of the trust, and would have gotten it back, if all of her children had predeceased her without issue. We held that the fact that her interest remained in her by inertia rather than by express provision of the trust instrument was not controlling.

In its motion for a new trial the plaintiff gives the trust instrument an essentially different construction. It now says that the grantor had no interest at all in the corpus; that under no circumstances would the property have come back to her. Though the plaintiff does not say so, I recognize, of course, that what the grantor might have received by inheritance from her children has no bearing on the question.

In determining the correctness of the interpretation of the trust instrument now urged by the plaintiff, it becomes necessary to consider what would have happened to the property if all of the three children had predeceased their *215mother without issue. If the mother had no interest in the corpus, either the estate of each child would have taken one-third of the property when the mother died, or the estate of the last survivor of the three, even though he did not survive the mother, would have taken all the property. The plaintiff takes no position as to which of these results would have followed. I recognize that there is a good deal of unreality about trying to determine, for the purpose of applying the estate tax statute, where property would have gone under the terms of a conveyance, if certain things had happened which did not happen. If the events which I am assuming had in fact happened, the court which had the instrument to interpret would have had a real flesh and blood case, not an abstraction, to deal with. If the children had all died without wills, spouses, or creditors, the mother, if she had no re-versionary interest, would probably have taken as heir of the survivor, who would have taken the shares of the others as their heir, and the question of the capacity in which she took might not have been very important. But if one or more of the children had come of age and made a will, or had married and thus left a statutory heir, or had become heavily involved in debt, and then they had all died before their mother, the question of whether their mother’s bounty should go to strangers without the children ever having had it, would have been no mere hypothetical question.

I think that if the question had arisen as I have stated it, the court would have held that the mother was entitled to the property; that the children did not have inheritable interests unless they survived the mother.

No exact precedent can be cited, of course, for our task is to give meaning to words different from any that have been litigated. The New York statutory definition in Section 40 of its Beal Property Law is of no assistance. It, as interpreted in *Moore*v. *Littel,*41 N. Y. 66, defines as a vested remainder the interest of one who, “if the life estate should now cease, would *eo instcmti et ipso facto*have an immediate right of possession * * *.” Under that definition a conveyance to A for life, then to B and his heirs if B survives A, would give B a vested remainder, but so calling it would neither enhance its value in B’s hands nor diminish *216the chance which the grantor would have of getting the property back if B did not survive A. Nor should such a definition affect the taxability of the substantial interest which the grantor has in the property, if he dies before A dies. The plaintiff cites some English cases which give substantial support to the interpretation for which it contends. *Harrison*v. *Foreman*(1800), 5 Ves. 207; *Browne*v. *Kenyon*(1818), 3 Mad. 410; *Sturgess*v. *Pearson*(1819), 4 Mad. 411; *Maddison*v. *Chapman*(1861), 1 J. and H. 469; *Wiley*v. *Chanteperdrix*(1893), 1 Ir. R. 209.

In the instant case, the grantor directed the trustee “upon my death to assign, transfer and set over” the property “to my three children” naming them “and the survivor or survivors of them” with the provision for issue of the children to take their parent’s share. While the so-called “divide and pay over” rule is not in good repute, nevertheless I think there is some, perhaps slight, significance in the fact that the only gift to the children is in the direction to pay over the property to them at their mother’s death; that for the trustee to pay over the money, not to the child, but to a devisee or creditor or spouse of the child would not be very obviously within the terms of the direction. I think that the gift here made to the three children “and the survivor, or survivors of them” is not greatly different from a gift to “such of the three children as survive me” which latter expression would rather plainly give interests subject to the condition precedent of surviving the mother. I think that the grantor’s express statement, after the gift to the children “and the survivor, or survivors of them,” “but if any of my said three children has predeceased me and left issue him or her surviving,” then such issue should take that share, is hardly consistent with an intent that in certain circumstances, if a child so died and left no such issue, his share would go to his creditors, or devisees, or spouse.

I realize that the interpretation which a court gives to such an instrument must necessarily be subject to misgivings as to its correctness. I have, however, little doubt as to what interpretation the grantor would have wished to have given to the instrument, if the events, which I have been obliged to assume, had occurred. I know of no canons of interpre*217tation, currently significant, which exert much pressure one way or another in a case involving language and circumstances such as those before us. The instrument being an *inter vivos*transfer and not a will, the presumption against partial intestacy has no bearing. And feudal reasons of policy favoring vestedness have no significance in these times, and as to the Mnd of property here involved.

I think our former decision was right and I would therefore, deny the motion for a new trial.

Jones, Judge, took no part in the decision of this case.

SPECIAL EINDINGS OE PACT

Upon a stipulation by the parties the court, on November 6, 1944, made special findings of fact, which as amended, adopted and confirmed, February 5, 1945, are as follows:

1. Clare G. Johnson (formerly known as Clara G. Davis) died on September 28, 1941, a citizen of the United States and a resident of Winter Park, Orange County, Florida.

2. On December 5, 1941, the Last Will and Testament of Clare G. Johnson was duly admitted to probate by the County Judge’s Court of Orange County, Florida, and Letters of Administration c. t. a. thereon were issued by said Court on December 15,1941, to Ferdinand H. Davis, of New York City, New York, who was finally discharged as said Administrator c. t. a. by order of said Court, dated May 15, 1943. The will had been executed November 8,1922, in anticipation of the re-marriage of the testatrix, which re-marriage occurred January 20,1923. The will was never revoked. It devised her property to her three named children in substantially the same manner as was provided for the property conveyed in trust, as appears in finding 3.

3. On October 23, 1922, Clara G. Davis (who through a later marriage became known as Clare G. Johnson), by an instrument in writing created a certain trust in which she agreed to assign, transfer and set over unto Central Union Trust Company of New York (now known as Central Hanover Bank and Trust Company), the petitioner herein, 49,500 shares of Imperial Tobacco Company of Canada, Limited, *218ordinary stock, in trust, to collect the dividends therefrom and pay the same to her during her life, with remainder to her three children, Gertrude Clare Davis, David T. Davis, and Ferdinand H. Davis, and the survivor or survivors of them, in equal shares, the share of any deceased child to go to its surviving issue, if any, in equal shares, which trust was declared to be irrevocable by an express statement therein. A copy of the trust instrument, marked A-l, is part of Exhibit A, attached to the petition herein and by reference made a part hereof. After the execution and delivery of the trust instrument it was amended by a written agreement between said Clare G. Johnson (formerly Clara G. Davis) and the trustee, dated January 4, 1929, a copy of which agreement, marked A-2, is part of Exhibit A, attached to the petition herein and by reference made a part hereof. This agreement was approved by Gertrude Clare Davis, Ferdinand H. Davis, and David T. Davis, by instruments in writing, dated January 4, 1929, January 7, 1929, and March 27, 1941, copies of which instruments, marked respectively A-8, A-4, and A-5, are part of Exhibit A, attached to the petition herein and by reference made a part hereof. The trust instrument dated October 23, 1922, as amended by the agreement dated January 4, 1929, was in full force and effect at the time of the death of Clare G. Johnson on September 23, 1941, when the trust terminated according to its terms. The 49,500 shares of Imperial Tobacco Company of Canada, Limited, ordinary stock were delivered to the Trustee on January 5, 1929, and there has been no addition to the trust fund since its original establishment.

4. On October 23, 1922, when the trust instrument was executed, the grantor, Clara G. Davis (thereafter known as Clare G. Johnson) was 42 years old as of her nearest birthday and her daughter, Gertrude Clare Davis, and her sons, David T. Davis and Ferdinand H. Davis, were respectively 11, 20 and 19 years old as of their nearest birthdays and at that date the children had no issue. On September 23, 1941, the date of the death of Clare G. Johnson, all three of her children were living and there were also living Helen Clare Elizabeth Davis, a daughter of said David T. Davis, who was then 13 years old as of her nearest birthday, and Evan K. Powell and *219David G. Powell, sons of said Gertrude Clare Davis, who were then respectively if years old and 8 years old as of their nearest birthdays.

5. Ferdinand H. Davis, as Administrator c. t. a., filed with the Collector of Internal Revenue for the District of Florida, on April 27, 1942, a federal estate tax return for the estate of Clare G. Johnson. The assets of the trust were described in that return and copies of the trust instruments were annexed thereto, but the assets were not included as a part of decedent’s estate and the return as filed disclosed that no estate tax was due from the estate.

6. Upon the audit of the federal estate tax return, the Commissioner of Internal Revenue asserted against petitioner, as trustee and transferee of the trust, a net deficiency in federal estate tax, after allowance of the full eighty per cent credit for estate inheritance taxes provided for by Section 813 (b) of the Internal Revenue Code, of $148,476.37, which amount, together with interest of $219.66, making a total of $148,696.03, was thereafter assessed against petitioner.

7. In computing that deficiency the Commission of Internal Revenue included as a part of the gross estate of the decedent the sum of $599,837.98, representing the value of the trust, that amount having been included as part of the gross estate solely on the ground that the transfer was one to take effect in possession or enjoyment at or after death because under the terms of the trust Clare G. Johnson (formerly Clara G. Davis), the grantor, had reserved to herself the right to the income of the trust fund during her lifetime, and because of the possibility that the principal of the trust might revert to the grantor as a result of the failure of the trust, in the event that the grantor’s three children and their issue should all predecease the grantor. The Commissioner of Internal Revenue has made no claim that the transfer was made in contemplation of death.

8. The petitioner, on December 31, 1942, paid to the Collector of Internal Revenue for the District of Florida, the amount of the alleged deficiency in the sum of $148,476.37, together with interest thereon of $219.66, making in all the sum of $148,696.03, the full amount of the assessment.

*2209. On March 12,1943, the petitioner caused to be filed with the Collector of Internal Revenue for the District of Florida a claim for the refund of said $148,696.03, based on the ground that no part of the value of the trust fund was includible in the gross estate of the decedent. A copy of that claim for refund is attached to the petition herein marked Exhibit A and is made a part hereof by reference.

10. By a letter to the petitioner, dated August 17, 1943, a copy of which is attached to the petition herein, marked Exhibit B and made a part hereof by reference, the Commissioner of Internal Revenue rejected the petitioner’s claim for refund.

11. No part of said $148,696.03 has been refunded to petitioner.

[12. The transfer of the property in trust, as set out in finding 2, was not intended to take effect in possession or enjoyment at the death of the settlor.]

Madden, Judge,

delivered the original opinion of the court, November 6,1944:

The plaintiff is the trustee of a trust created by Clare G. Johnson in 1922. She was 42 years old at that time and intended to remarry. She transferred some $600,000 worth of property to the trustee in trust to pay the income to herself during her life. The trust instrument further provided:

> * * * and upon my death to assign, transfer and set over the said shares of stock and any increase thereof, and any and all other securities held by my Trustee under the terms and provisions of this trust, to my three children, Gertrude Clare Davis, David T. Davis, and Ferdinand H. Davis, and the survivor, or survivors of them, in equal shares, but if any of my said three children has predeceased me and left issue him or her surviving, to assign, transfer and set over the share such child would have received if living to its issue in equal parts; * * *

The trust instrument expressly declared itself to be irrevocable.

The three children named in the language just quoted were 11, 20, and 19 years old in 1922, and had no children. *221When tbeir mother died in 1941, they were all still living, and two of them had living children.

Upon the death of Mrs. Johnson the Commissioner of Internal Revenue included the property, which she had conveyed in trust, in her estate, and taxed the estate accordingly. Except for this inclusion, her estate was not large enough to be taxable. The plaintiff, as trustee and transferee of the trust property, paid the tax, amounting, with interest, to $148,696.03, and filed a timely claim for its refund, which claim was rejected.

The ground upon which the Commissioner subjected the trust property to the estate tax was that the transfer in trust was a transfer intended to take effect in possession at or after the death of the transferor, because (1) she had reserved to herself the income of the trust property for her life and (2) under the terms of the instrument the corpus of the property would have reverted to her if her three children named in the trust instrument had all predeceased her without issue.

The Government concedes that the first basis of the Commissioner’s assessment was not valid. This trust was irrevocably created in 1922. The taxing statute was not amended until 1931 to expressly make the reservation of a life estate by a grantor the basis for including the property in the grantor’s estate when he died. The Supreme Court of the United States held in *Hassett*v. *Welch,*303 U. S. 303, that this amendment was not intended by Congress to apply to transfers made before its adoption in 1931.1

Our question, then, is whether the failure of the trust instrument to divest the grantor of all her interest in the property except the reserved life estate, thus leaving in her the chance that she might again become the complete owner of the property if her three children should predecease her without issue, which chance would continue until her death, made the conveyance in trust in the circumstances here present “ a transfer ** * **intended to take effect in possession or enjoyment at or after * * * [her] death” within the meaning of Section 811 (c) of the Internal Revenue Code; 26 *222IT. S. C. 1940 ed. Sec. 811. We use the neutral word “chance” to describe Mrs. Johnson’s remaining interest in the property, since the word reversion, the technically accurate name for it, would tend to attribute to her interest more substance and value than it actually had, and the words “possibility of reverter”, the currently popular name for all uncertain interests involved in such tax problems, is not a true description of it.

To get the property, Mrs. Johnson’s children or other issue had to fulfill a condition precedent, i. e. they had to survive Mrs. Johnson. If they did not, the property was hers, because it was hers to begin with and she had not given it to them except upon that condition. Her death then, before theirs, was necessary to put their gift beyond the chance of failure. We must determine whether the language of the Supreme Court in *Klein*v. *United*States, 283 U. S. 231, is applicable. The court said “It is perfectly plain that the death of the grantor was the indispensable and intended event which brought the larger estate into being for the grantee and effected its transmission from the dead to the living, thus satisfying the terms of the taxing act and justifying the tax imposed.” In the *Klein case*the grantor conveyed to his wife for life, and provided that if the wife should not survive him, the land should “in that event remain vested in said grantor.” The conveyance further said: “upon condition and in the event that said grantee shall survive the said grantor, then and in that case only the said grantee shall by virtue of this conveyance take * * * the said lands in fee simple.”

A comparison of the instant case with the *Klein case*shows the following things. In the instant case the grantor reserved the use of the property to herself for her life; in the *Klein case*the grantee, who was also given the remainder upon condition that she survive the grantor, was given the property for her life. In the instant case no express provision was made in the instrument as to where the property should go if the grantees did not survive the grantor; in the *Klein case*the instrument expressly provided that the land should “remain vested in said grantor. ” In the instant case the grantor was 42 years old and the grantees were 11, 20, and 19 years old at the time of the conveyance; in the *Klein case*the *223grantor and grantee were husband and wife, but whether they were approximately the same age, or differed as much as the mother and her children in the instant case, is not disclosed by the court’s decision. In the instant case there were three named grantees, with a provision that issue of any who died before the grantor leaving issue should be substituted for the deceased named grantee; in the *Klein ease*there was only one named grantee, and no provision for the substitution of her issue.

In the case of *Helvering*v. *Hallock,*309 U. S. 106, at page 112, the court said of the Klein decision:

> The inescapable rationale of this decision, rendered by a unanimous Court, was that the statute taxes not merely those interests which are deemed to pass at death according to refined technicalities of the law of property. It also taxes *inter vivos*transfers that are too much akin to testamentary dispositions not to be subjected to the same excise. By bringing into the gross estate at his death that which the settlor gave contingently upon it, this Court fastened on the vital factor.

In applying the test thus stated in the *Halloeh ease*to the instant case, we observe that the dispositions of Mrs. Johnson’s transfer in trust bear a striking resemblance to the provisions of the law of inheritance as it would have operated without any transfer in trust, if she had in fact retained the property and if she had not remarried. The statutes of descent would have given her property to such, if any, of her children or more remote issue as survived her. If none survived her, and she had made no other disposition of the property, it would have gone to her collateral heirs. Her transfer in trust would have had the same effect. Again, her transfer in trust effected the dispositions which a normal parent, in her circumstances, would have written into an irrevocable will, if the law permitted such a will and permitted one to segregate a portion of his property to fulfill the gifts made by his will. The will, though irrevocable, would have been, as was the trust disposition, ambulatory in the respect that it provided for survivorship among the children or their issue down to the parent’s death. If none survived, all the gifts would have lapsed, as they would, in effect, under the *224trust disposition. And the testator would have had the enjoyment of the property during her life, and the right, if her issue predeceased her, to dispose of it *inter vivos*or by will or by letting it descend to collateral heirs, which she had under the trust disposition.

We think that Mrs. Johnson’s arrangements for the devolution of her property were “too much akin to testamentary dispositions [or intestate succession] not to be subjected to the same excise.” *Helvering*v. *Hallock, supra.*

The plaintiff urges that the absence of an express provision in the trust instrument that the property should revert to the grantor upon the failure of the children to survive her should have some weight. We think not. If it did, the estate tax could be avoided in practically all cases by making dispositions identical in substance with taxable dispositions but using a different form of words easily available to any conveyancing lawyer. The *Klein case*and the *Halloch case,*sufra, both teach that taxability *vel non*must not be made to depend on forms of words. As to the statutory words, “intended to take effect” etc., the grantor certainly intended what she expressly said, that her surviving children or issue were to get the property, and she certainly meant thereby that her death should be the event after which their rights in the property might be ascertained.

The plaintiff urges that the degree of likelihood of the non-happening of the condition on which the grantees’ taking depends should be a factor of importance. There is authority for this position. See, e. g., *Estate of Mabel H. Houghton,*2 T. C. 871; *Estate of Ellen P. C. Goodyear,*2 T. C. 885; *Estate of Henry S. Downe,*2 T. C. 967. In *Commissioner*v. *Kellogg,*3 Cir. 119 F. (2d) 54, there seems to have been no interest left in the grantor at all, unless the ultimate gift to his own next of kin be regarded, by some doctrine of “worthier title” as being a gift to himself and hence a legal nullity, leaving the ultimate interest undisposed of and hence in himself. See Restatement, Property § 314.

We find it difficult to see how taxability can be determined on the basis of the degree of probability that the property will revert to the grantor. The variations as they arise in *225the cases, involving persons of all ages and conditions of health, are great. It has not even been suggested that, to make an interest left in the grantor taxable, the probability that the property will return to him must outweigh the improbability. If a preponderance of probability is not required, what degree of probability shall be required? In some of the Tax Court cases, the probability seemed, actu-arially, to measure practically zero. Perhaps in such cases a test of *de minimis*could be applied. We do not have to face that problem in this cáse. The chance that Mrs. Johnson, a 42-year-old woman, might survive her three children and their possible issue was not negligible, but substantial.

We think that the remoteness or unlikelihood of the property’s returning to the grantor, or indeed, the complete absence of any possibility of its returning, although it is a factor to be considered in determining taxability, may not be the determining factor. The fact that the grantor has made use of permissible conveyancing devices such as contingent remainders, shifting limitations, etc., to keep the ultimate ownership of the property uncertain until after the grantor’s death, by eliminating from the list of his grantees those who predecease him, and adding to the list others, such as issue of named grantees who do not survive him, give the whole arrangement a decidedly testamentary flavor. This resemblance to a will might not be removed even by an ultimate disposition, upon the failure of all preceding and uncertain interests, which ultimate disposition would leave open no possibility that the property could also return to the grantor.

We also think that the Supreme Court’s decision in *Hassett*v. *Welch, supra,*does not prevent us from considering the grantor’s reservation of the use of the property to herself for her life as one factor, among the many factors present in the case, showing a resemblance to a testamentary disposition. We think it is such a factor, and that it, together with the fact that the gifts to the children and their issue remained uncertain and subject to increase or complete elimination by events which could occur at any time before the grantor’s death, and the further fact that there was a chance that the *226corpus of the property might revest in the grantor upon the happening of events which might occur at any time before her death, bring the case within the rule of *Helvering*v. *Hollock, supra.*

We conclude, therefore, that the plaintiff is not entitled to recover, and that the petition should be dismissed.

Whaley, *Chief*Justice, concurs. [November 6, 1944]

Littleton, Judge, dissents. [November 6, 1944]

WhitaKER, Judge,

concurring: [November 6, 1944]

I agree with the result and with the reasoning of the majority opinion, except that I do not agree, if a person prior to 1931 completely divested himself of all interest in the remainder, with no possibility of reverter, reserving to himself only the income for his life, that the property could properly be included in his gross estate.

See also *N. Y. Trust Co.*v. *U. S.,*100 C. Cls. 311.