*1 Tо contract. with compliance stantial a con- where is instant case us digging water more encountered tractor contract, than according to ditch state fails a case anticipated. Such compensation. extra for of action a cause Court District judgment of with is remanded reversed, cause in accordance proceed instructions opinion.
this v. SMITH. et al.
BRADLEY
No. Appeals, Circuit. Seventh Court
Circuit
Aug. Nolan, Atty., Indianapolis, Val U. S.
Ind.,
appellant.
Boyd
Noel,
Alan W.
W.
both
James
Ind.,
appellees.
KERNER,
Circuit
MAJOR
and
WOODWARD,
Judges,
District
Judge.
WOODWARD,
Judge.
District
presented by
question
this record is
or not a
whether
Coffin,
daughter,
E.
*2
Bradley,
Coffin
within two
of the
president
death was
the Board of Trus-
of
in
of the
con- tees of
the Meridian Street
E. Church.
M.
templation
meaning
of death within the
of He
intensely
game
in
interested
Section
Act of
302(c) of the Revenue
whist,
of
separate
had written two
books
as amended
of the Revenue
Section 803
on the game and had attended national
U.S.C.A.Int.Rev.Code,
Act
§ contests in
parts
country.
different
811(c).
gift was
The estate tаx on this
Until August,
at all
protest,
under
a claim for refund
good
times in
regular
health and in
attend-
filed and denied and suit was instituted in
upon
businesses,
ance
his various
when he
executors
District Court
decedent’s
suffered an acute uremic attack from which
against the Collector of Internal Revenue
completely
he
recovered within
three
to recover
in-
amount
tax
and
days.
four
April 6, 1927,
On
he consulted
terest
thereon.
District
Court
a doctor concerning a heart ailment. The
findings of fact and stated conclusions of
prescribed
doctor
rest but no medicine. He
law and
in
held that the
was not made
visited the doctor from time to time until
judg-
of death.' It entered
10, 1927,
appeared
when he
October
ment in favor of the
The col-
executors.
15, 1929,
completely.
recovered
On
appealed.
lector
operation
enlarged
he underwent
for an
an
15, 1934,
Decedent died October
at the
prostate gland.
operation
he
age
years.
specialists
genitо-urinal
consulted
in
was made within a
surgery
operation.
who recommended the
than
little more
four
months
specialist
him
The heart
operation
observed
after the
death.
found no cause for alarm
and
prominent
Decedent was a
citizen of on
pros-
account of
heart. The
Indiana. He
been a
oрeration
tate
general
resulted
im-
in a
park
member
twenty years
board for more than provement of decedent’s
In May,
health.
public
and of the board of
1932, he
gastro-intestinal
had a
attack
works from 1917
very
to 1921. He was
ac-
days,
symptoms,
no heart
with
two
which
tive
engaged
large
and was
in
business af-
fully
did
con-
recovered. He
he
president
He had
general
fairs.
been
and
specialist again until Decem-
sult a heart
ber, 1933,
manager of
Company
the Central Trust
of his
when he had
recurrence
years prior
for a number of
to 1913. In
complete re-
former
He had a
trouble.
year
company
the trust
was consoli-
physician
covery
but
adviсe of his
Company
dated
the Farmers Trust
January,
in
and
he
to Florida
went
and decedent remained a director and
March, 1934,when
there until
remained
of the board of
new company
chairman
had a recurrence
the trouble that oc-
During
up
until 1929.
all of his life and
December,
ap-
in
curred
but he came home
large рrivate
his death he had
until
busi-
entirely.
parently recovered
He had no
properties
ness interests
owned
and
by any physician
further attendance
until
managed.
His fortune had been built
July
up through his own efforts. From
un-
27, 1934,he
From
21 to
attend-
til the time
his death he was
session
American
Whist Con-
directors
Publishing Company,
treasurer of the
Star
prize.
won
Chicago
and
He
corporation
gress
en-
apparent good
July 4,
health on
publication
gaged
number of
party
newspapers,
attended
annual
at his
including
Indianapolis
daughter’s home in Culver. He
As
returned
charge
such treasurer he had
Star.
Indianapolis
July
important expenditures
July
after
and on
4th
and investments
with what
Publishing Comрany.
was stricken
out to
the Star
8th
turned
He was
illness,
ill-
such
be the
performed
active as
treasurer
begjnning
and
July
commencing
duties
office until
after an attack of
ex- ness
indi-
cepting during times of illness
time on
hereinafter
From that
gestion.
under
to and at times of his
physician,
referred
He was the
supervision
vacations.
of a
but
rallied
personal representative
to time and left
from time
the house for
John
Shaffer, hereinafter
C.
referred
more drives and attended to
business as treas-
particularly,
practically
owned
who
all of
of the Star
urer
until
corporation.
stock of
common
August,
the
was
He
1934. From that
late
time on
many
organizations
сivic
active
did not leave the house
and died October
many years
up
physician
the time of
stated that de-
active,
be-
always
certificate of
that after
first
cedent was
always
exchanged
stock was
new
certificate
his last illness
ginning
original
work.
issued. The
to ‘his
endorsement on the
get back
anxious
con-
difficulty keeping
him
contract
dorsement,
scratched out and a new en-
physician had
handwriting
sufficiently. There seemed to
fined
*3
cedent,
contract,
the last two
on the
referring
until
signs of fear
death
certificate,
to the re-issued
stating
life.
and
in
or three weeks
effect
the
that
assigned
contract
to
family
1918,
February 26,
decedent’s
On
Mary
Carolyn
H. Coffin and
Coffin Brad-
Mary H.
himself,
wife
his
consisted
ley. Again
his attorney
decedent advised
Coffin, a
Coffin,
Carolyn
daughter
his
and
again
what had been done and
to
stated
wife, and
Coffin,by former
son Clarence
attorney
his
money
that the
should be
Ingram.
Fletcher
step-daughter
Jean
to his
daughter immediately
wife and
on
ad-
26,
he had
February
1918
to
Prior
re-purchase
the
by
of the stock
Shaffer.
$40,000
his son
to
Clar-
more than
vanced
wife,
Coffin,
Mary
8,
His
H.
died March
5, 1934,had
prior to
no time
ence. At
June
1933.
daughter
his
Car-
any
to
he made
advances
11,
May
1933,
olyn.
On
decedent called on his
attorney and
attorney
advised his
that
1918,
February 26,
Cof-
On
yet
option,
Shaffer had not
exercised his
C.
fin,
into
contract with
entered
John
during
that
the lifetime of his wife he had
whereby
and trans-
sold
Shaffer
Shaffer
ferred
never delivered
assignments
contract
of the com-
shares
decedent 500
to
his
and
knowledge
to
wife
she
that
had
mon stock of
Star
assignments.
He further advised
Indiana,
purchase
for the
attorney
his
in
that
view of the
paid by de-
$100,000, which was
price
his
desired
assign
wife he
to
the contract
contract Shaffer
same
cedent.
theBy
daughter
to
stock
his
so as to make
repurchase
option
stock
given the
to
present
her a
thirty-fourth birthday,
on her
price.
stock
Certificates of
for the same
11,
May
which was
attorney
1933.
delivered to decеdent.
issued and
were
prepared
executed,
then
and decedent
on
1918,
Decedent,
February 26,
in
own
on
his
instrument which he
on
made an endorsement
handwriting,
assigned
Carolyn
presented
and
his daughter
to
contract and
the effect that the
to
contract
thirty-fourth
“on her
birthday, all
assigned and transferred to
stock were
Mary
my right,
title
and interest
and to said
wife,
Coffin,
Carolyn
his
and
Cof-
Ii.
contract with
26,
February
said
dated
Shaffer
fin,
month
daughter.
his
About a
after the
1918and
and to the said certificate of
con-
contract he exhibited the
date
stock of the Star Publishing Company.”
regular
his
its
to
and
endorsement
tract
attorney
attorney.
to his
that
He stated
assignment
At the timе this
was execut-
personal advantage from ed,
had had some
attorney
decedent informed his
that he
personal
of his wife and that
estate
thought
was getting ready
Shaffer
re-
to
option
should exercise the
stock,
when Shaffer
purchase the
but was not
A
sure.
stock,
re-purchase
duplicate
decedent intеnd-
and
was sent to
give
proceeds
to
to his
and
wife
Shaffer
and was retained
Shaffer until
At
same
daughter.
time
stated to
5,
about
June
attorney
provided
had
his
that he
and ad-
1934,
4,
Shaffer
notified de-
money
Coffin,
vanced
Clarence
a son
pay money
he would
cedent that
and re-
wife,
aggregating
in amounts
a former
5,
purchase the stock
1934. On
attempt
in an
$40,000
to establish him
day,
and before
mon-
Shaffer
that
attorney
He instructed his
if
business.
that
ey,
daughter
decedent called his
and
perfected
without having
die
he should
Harvey Bradley,
husband,
her
representative
de-
wife
daughter
his
and
desired
attorney and the
cedent’s
attorney
per-
that the gift
his
see
his
At that meеting
office.
Shaffer to
fected, disclosing
particular place
in his
daughter
Carolyn
cedent exhibited to
kept.
safe which the
instrument
26,
February
1918,
the instrument
to-
26,
February
1918,
5,
assignments,
former
gether
Between
and
with the
1922,
daughter Carolyn
daughter
had
of which did
been none
Harvey
Bradley
knowledge
to Charles
married
to that
time. At
thereafter
meeting
present
was
Bradley.
known
told
as
those
Coffin
that he
going
out a
carry
pay
long
purpose
would
for a
time and
dominant
had mind
is to
daughter.
disposi
reach
“substitutes
amount
presented
however, he
to tions” and
so,
prevent
doing
evasion of the estate
pres-
to those
tax.
Coolidge,
exhibited
Nichols v.
274 U.S.
prepаred by
ent,
S.Ct.
document
52 A.L.R.
71 L.Ed.
1081;
States,
of in-
retention
providing
Milliken v.
U.S.
himself
United
mak-
lifetime
during
809;
S.Ct.
come thereon
75 L.Ed.
Wells,
States v.
attorney
supra;
there-
provisions. His
ing other
Purvin v. Commis
sioner, Cir.,
intended
if he
him
96 F.2d
A.L.R.
advised
as-
accordance
make
May’ll, 1933,
must
signment of
From
“must
the evidence the court
*4
have
and should
complete
irrevocable
intent,
detеrmine the
motive of
de
the
Commissioner, supra.
the
however,
document,
strings
The
it.
to
cedent.” Purvin v.
never
was
executed.
intent,
motive,
Was the
the
one associated
1934,
5,
the
Shaffer
with life or was it
a
June
one associated with
payment and settle-
$101,100 full
cedent
testamentary
disposition of decedent’s
represented by
agrеe-
loan
the
of
ment
the
property ?
checks,
26, 1918,
February
in two
of
ment
or
transfer was
Whether
not a
$1,100. The
$100,000and
for
one for
contemplation
ques
of death
by de-
$100,000
endorsed
for
was
check
tion of fact
from all the evidence.
deducible
daughter
to
Caro-
his
and delivered
cedent
impelling
trial
mo
The
court held
thе
thereupon
a release to
executed
lyn, who
of the
tive
transfer was associated with
check
proceeds of the other
Shaffer.
reasonably
life. Can
life motive be
in
by decedent.
retained
were
from
ferred
the evidence?
surrounding
circumstances
Such are the
from
appears
It
the uncontradicted
Carolyn, which the
daughter
gift
his
to
the
1918,
26,
February
sixteen
that on
evidence
in contem-
maintains was
Collector
death,
years before his
the
one-half
and'
meaning of the
within the
plation of death
plan
design
give
or
to
decedent formed
estate, including the
Decedent’s
statute.
loan,
paid,
amount of the Shaffer
when
the
$250,000.
to
approximately
amounted
gift,
daughter.
gift
his
While the
to
wife and
the en-
found that neither
The Court
when
the
was consummated
Shaffer
1918,
26,
of
February
of
dorsements
June
1934,yet
5,
motive
the
on
the
for
loan
gift
11,
May
of
1922,
assignment
5,
nor the
by
consummation
its
several
antedates
1934,
5,
1933,
transaction of
nor the
years.
design
plan originated
or
on
сontemplation or
by
máde
decedent
were
26,
February
It was reaffirmed after
1918.
payment
the
but that
expectation of deaths
marriage
daughter, Carolyn,
of his
to
the
Carolyn
daughter
his
on
to
was made
Harvey Bradley, when
decedent
pursuant
plan
ato
was made
June
and
original endorsement
scratched out the
ana
by him more than six-
design formed
daughter
the
of his
inserted
name
in newa
making
the
half
before
and a
teen
5,
assignment After
gift.
again
death of
wife he
affirmed
when,
original design
or
phrase
meaning of the
“con
1933,
11,
attorney
pre
he instructed
to
longer open
templation
death”
to
is no
executed,
pare, and when
an
uncertainty.
or
In United States v.
doubt
Carolyn
daughter
presentation
for
to
to his
446,
451,
Wells,
S.Ct.
283 U.S.
birthday
thirty-fourth
of all his
on her
her
court said that the
dominant
L.Ed.
purpose
in the Shaffer contract
right and interest
“to
sub
was
reach
design
certificates
stock. The
dispositions
testamentary
stitutes
accomplished immediately
the re
prevent
to
the evasion
the estate
thus
**
*
purchase
by
stock
Shaffer and
may
as the transfer
other
tax
payment by
Shaffer
sum
gift
the indicia of valid
in
all
wise
r
$100,000.
vivos,
differentiating
facto must
ter
transferor’s
By
found
motive. Death
married.
be
Decedent
twice
‘contemplated,’
is,
Clarence,
son,
the motive
he had a
must
first wife
to whom
given
induces the transfer must be of
had
financial assistance
ex-
disposi
$40,000.
testamentary
which leads to
His son apparently
sort
tent of
unfriendly
and had
tion.”
successful
atti-
a determined is whether
transfer
his father.
toward
tude
contemplation
In
a transfer
wife.
by his
daughter
meaning
302(c)
of death within
making
Sec.
intention
formed the
advantage
of the Revenue Act of
аs amended
had
some
that he
he stated
of his
Revenue
803(a)
Sec.
Act of
management of the estate
from
proof
which c.
obligation
Stat.
279. No direct
had a moral
He
wife.
contemplation
and,
the that
transfer was not in
daughter
after
his wife
ran to
offered,
of death
wife,
make
and if shown
it
at all
death
by way
compensation
inference
certain cir-
of restitution
kind
some
cumstantial
Actuated
evidence.
he had received.
benefits
for the
mo-
justice
sense
by a normal
aim
The dominant
of the statute is to
heavy gifts
up
balance
also to
tivated
disposi-
testamentary
reach substitutes
wife.
son
a former
made to
he had
and а transfer
is in
tions
obligation to
discharged moral
He
if
impelling
motive for
the trans-
had made no substantial
son. He
disposition.
leads
fer
prompted
her was
Carolyn.
Wells,
States v.
U.S.
51 S.
justice.
for the
The motive
by a
sense
Ct.
75 L.Ed.
lacks
with life.
It
associated
gift was
*5
part
is of material
the transfer
If
testamentary
disposition.
of a
elements
property without
considera-
Wells, supra.
v.
States
years
made within two
tion and
design was conceived when
death,
provides
shall
the statute
it
be
good
when there
health and
was
he
contemplation
deemed to have been made in
any premonition of
have been
could not
death. The burden
rebutting
this
showing
is
that
There
no еvidence
death.
presumption under the facts in our case
any apprehension of death
under
plaintiff.
he executed
at
time
transfer
gift
in 1933. After the
age.
eighty-five
Within six
he attended the
consummated
before
transfer he
months
suffered two
Congress
Chicago,
Whist
American
attacks,
occurring
the latter attacks
heart
prize, was
awarded
Chica-
entertained
transfer,
months
within three
Indianapolis
appar-
go
returned
more than a month
little
later
had a
good health. He continued to attend
ent
definitely
which
third attack
foreshadowed
at the
his business
as
gave
death. When
the check
August,
until late
treasurer
daughter, he remarked
doing
that
opinion
the record con-
are
that
We
something
long
had had in mind and
substantial evidence from which the
tains
agreement
he handed her an
then
for her
might
court
conclude that
the rebut-
trial
sign, requiring
money
that the
be invest-
presumption created
table
in a certain
manner with the income
was overcome
that
was not рayable to the
privi-
decedent and with the
death.
lege
principal.
invading
that
held
burden is
has been
not
It
t
52(a)
Under Rule
Rules
is disclosed which is
if a motive
as con
met
Procedure, 28 U.S.C.A.
following
Civil
disposition
testamentary
with a
sistent
723c, we must affirm
section
unless the find
vivos;
inter
property as
or if
“clearly
ing of the trial court
erroneous.”
disclosed, either of
motives are
which
two
trial court
evidence
before it
transfer,
might have accounted
reasonably
could
it
infer
testamentary and the other
Farm
not.
not
in contemplation
transfer
Bowers,
Cir.,
Trust
v.
Loan &
Co.
ers’
say
death. We cannot
that the conclusion
Id., Cir.,