*1 institution, large, community pro- ideal democratic reflected sup- (Emphasis our courts.” cesses of
plied.) is funda-
Obviously the base” “broad means “fundamental.” and “basic”
ment beyond ju- it is our is contended that corpus in habeas
risdiction to consider an error judge
action might had corrected
which the accused contrary appeal. The was held Wil-
on Kaiser, supra, page 475 of
liams v.
U.S., 65 a habeas
corpus proceeding. aspect Redmon the case is unlike
In this 196. Squier, judge
contention concerns the failure of to attack advise the accused jury the Su grand panel. None of preme cited above this con Court cases case, the Redmon tention mentioned ques
much less considered. That presented record
tion as here lurks in the Redmon is even irrelevant case more criminal than it civil cases. Fall,
Webster
148,
FLICK’S v. COMMISSIONER ESTATE INTERNAL REVENUE. 12160.
No. Appeals,
Circuit Court of Fifth Circuit.
March Rehearing As Corrected Denial SIBLEY, dissenting. Judge, April 16, 1948.
These six a cash value at making date of the of the trust of $174,004.12. above, As noted four were single premium policies taken out within Cravath, Connelly, R. Albert Swaine six weeks date creation Moore, City, & peti- all of New York the trust. tioners. provided The trust instrument Oliphant, Counsel, Chief Charles Bureau trustees should: Revenue, of Internal Low- and Charles E. “ * * * income, pay net in as ery, Atty., Sp. Revenue, Internal Bureau of nearly practicable equal monthly instal- both Washington, C., Theron L. D. ments, wife, to the Insured’s Henrietta Caudle, Gen., Atty. Key, Asst. Sewall Flick, Ridgely during life, her and from George Stinson, Robert N. Anderson A. after her the Insured’s Post, Sp. Atty. Gen., L. and W. Assts. to the daughter Ingalls, Eleanor Flick shall then respondent. living, be said Ingalls Eleanor Flick SIBLEY, HOLMES, Before and WAL- life, during her the death LER, Judges. Circuit survivor of Ridgely said Henrietta Flick Ingalls, Eleanor and said Flick WALLER, Judge. “(A) if already the Insured shall On Jay December R. Flick cre- died, the Trustees shall divide and set ated an insurance trust with Bankers apart principal the then of the trust es- Company, corporation, Trust a New York separate tate into for the issue funds then Ingalls, Jr., a Robert I. resident of Ala- living Insured, equal per shares bama, trustees, to which the dece- ”1 ** stirpes, absolute, complete, dent on that date made assignments irrevocable paid- of six Four trust, creating up policies. Data refer- December made a policies may synopsized ence to these purportedly revoking former wills as follows: also providing for the creation of a When Face Amount Date Company Up Issue Paid Amount Collected 20,000
Mar. 1897 Northwestern Mutual 36,300.00 $ $ Co., Life Insurance No. 365032
Aug. company, 15,000 15,251.00 1911 Same
No. 891599 Single 80,000 Life 80,435.99 Nov. 1935 Mutual Benefit Co., premium
Insurance No. 20,000 company, Single 1935 Same No. 20,109.00 Nov. premium 32,500 Single Mutual 32,638.74 Nov. Connecticut Co., premium
Life Insurance No. 887364 50,000 Single 50,429.74 1935 Prudential Insurance
Nov.
Co., premium No. 9086294 ..$217,000 $235,164.47 Total.......... provided: may, 1The also Insured in the absolute “Anything Trustees, employed herein discretion of the contained to the con- trary notwithstanding, purchase by the dividend or Trustees of ad- paid-up ditional received insurance on dividends the life of policies during (under policy Trustees on the Insured meanwhile, $7,993.89 estate, trustees, collected trust, out residue of however, as policies, policies. dividends on the including the insurance same beneficiaries but distributable to the without dis- shown in evidence *3 as in the insurance trust. pute con- that: the estate of tax on the nevertheless, she and the other assigned beneficiaries valid, His of sixty-four In the the creation of the sixty-three-year to the trust estate. year value survived been for a of of return and of the insurance making age and in old wife him. trust decedent number the trust At the good health. was an contingent of the [1935] years; time was were debit balances decedent did not discuss inheritance however, display with agreement that his come sisted curity for his of the trust was the taxes; largely of primary interest in the attorney that he advised invalid stocks concern who his of desire wife. family; against which $140,000; that prepared the over his provide that rising attorney creation- taxes- there trust did,, the se- in- found that the dominant The Tax Court Decedent, of Palm while a resident the purpose creating the of deceased Florida, Beach, August died age or insecure advancing trust was of nearly years after creation the five very health, of the nature but that trust. dispositions that a de showed decedent’s Commissioner, in determination upon of provision the event sire to make decedent, added gross estate of the of the predominated, the trans death and that his $235,164.47, representing the the sum of policies to the trust the insurance fers of proceeds the trustees net received testamentary for estate “were substitutes policies.2 the six dispositions.” reaching this conclusion stipulated that at the time the that it influenced It was Court stated (a) considerations: following the decedent was trust was established transfer, to- good matter of the health and that that trust insurance, acquire wit, of death created insofar upon maturity at the greatest the health the settlor. their value it concerned insured; (b) the circum making Between the date of death of acquisition policies; agreement death trust and the decedent’s stances securities', change favored the (c) there that the trust fact naming those pursuant ficiaries Insured pears for without purchase and without vestments Executors or Administrators sured; make secured or unsecured loans to said curities decision of the Trustees terms as sonal, belonging “If in the v [******] laws other State persons [*] and without of the Will of the Insured or of liability and retain to the laws from the Executors of the Will the best seem to them desirable. The permitted them, or Administrators the State of New Trustees regard who for loss or then the within the class of in- may interests of of the Trustees liability jurisdiction, any relating to whether or not for the effects of the take concerning Trustees beneficiaries) real or depreciation investment, York or intestacy, funds loss bene- may per- ap- In- se- loans shall be propriety sured.” deficiency, trust created ternal Revenue Code. tive, own a moaning decedent on after his effect Code.” section 2 part of his contemplation of, persons trust, life and 811(c) of Commissioner, stated: death or in insurance formed a or about section making binding December of six certain corporations gross transferred in trust within him “ * * * or intended to and conclusive such transferred December estate within the estate Internal in the notice of In the alterna decedent on his purchases- 1935 formed interested in meaning Revenue value of said reason at or upon take In- In the same date and made of the settlor. beneficiaries distributary provisions as to the residuum amendment to Sec. Title U.S.C.A. Code, pro- as were made expressly decedent’s estate Internal Revenue will; insur (d) vided applicable the trustees should subsequent ance executors to those trust were the same as the who October died 3will; (e) provision prior 811(c), to the 1942 amendment, agreement authorizing provided determining trustees purchase adminis from executors or there estate of the decedent any securities or under his will should be trators included the value at the time *4 property, belonging personal, other real of property or his death of all of the dece- dent; to intimate connec his estate denoted an 811(a) required Sec. inclusion of decedent; tion in any decedent’s between the interest property mind in of required his death and 811(c) that would occur on Sec. “To the inclusion trust; design (f) creation any that the extent of which the interest therein of heavily transfer, were such em any as time made a phasized by otherwise, with the contemplation connected trust or considerations in death The or decedent. Court intended take or to effect summary following death, made statement: at or after his or of transfer, “All any of these look the direc which evidences he has at made a time provision integration tion a otherwise, for the he trust or under which proceeds prop and the the insurance any period has retained for his life or for erty devolving creating persua ascertainable reference to his without any sive a corresponding period inferences of motiva death for which does not tion individual pos- mind whose fact end (1) before his death they reflect, of, conduct and consistent session or or the testamentary with from, motivation.” (2) the income right, conjunction either alone inor with thought The Tax Court “Such other any designate persons person, who as property desire to motives free his possess enjoy shall from the hazards of market fluctua- stock * * * therefrom; Any income trans- tions and to avoid incidence of the in- fer of material accomplished come tax could been disposition nature final or dis- ways many other that even were thereof, tribution made the decedent convincing there more evidence of their years prior within two with- existence, yet weigh negli- consideration, shall, unless shown gibly in a determination contrary, to the be deemed to have been impelling purpose.” made of death within the meaning subchapter”. of this This case must be tried law prior August as it existed Sec. before amendment 3 following Tax Court made have made will author- which, together statement, agree- the in ization to the trustees in the trust thereunder, buy property ferences drawn any support is without ment from the executors unjus in the record and of the decedent the will overlooks tified: that a “We do was the time the trust was know will the fact that the authorization was that about executed at “If in the of the Trustees it created, highly probable appears it seems for the best interests prior there been a will to the beneficiaries of the Will of the Insured ultimately probated, persons may one which or of those who take making provisions property pursuant a will the same relating to the lams * * * intestacy effect may was in when the was set then Trustees up. petitioners purchase At least the burden on from the Executors of the Will contrary proving has not been or Administrators of the effects of In- met. man A of decedent’s wealth and sured” and is no more that he indicative experience hardly previously providing business ex could be made a will pected until he became executors than that he had not made wait age executing contemplated before his first will.” will and administrators to conclusion the decedent must handle his estate. executors, insured, to the administra- life insurance proceeds of provided that the insur- assigns, tors amount receivable “to the extent insured to may bequeathed by the policies ance be executor insurance any any uses person whatsoever or upon his own by the taken out may bequeath or de- in like manner as he life; the excess over the extent property or effects of vise by all receivable the amount which shall possessed, other beneficiaries disposition last testament.” in his included his own life” shall (Emphasis added.)
estate.
exempts
222.14
cash surrender
legal
values of
if under the law
Let
first see
us
process in
of creditors.
favor
pol
proceeds of
by the executor”.
were “receivable
icies
Supreme
of Florida
to the
that the
cases has
numerous
held
administrators,
assigns”
“executors,
policies, even
questions
administrators,
executors,
payable to the
*5
by
ownership
de
title
the
and
insured,
pass to
of the
do not
assigns
and
by
law
cedent must be determined
the
in
of the
the
or administrator
executor
disposition
ownership
the
controlling
proceeds go di
sured’s estate
that the
personal property
of the
the
state of
rectly
the beneficiaries and are not
residence
the
in this
which
debts
the de
paying
available
the
case was Florida.4 Federal
law does not
expenses
ceased nor the
his adminis
questions
property.
settle
of title to
Watson, 65
tration. See Bradford v.
Fla.
438;
484;
Pace, 19
62 So.
Pace
Fla.
v.
must, therefore,
We
consider the stat-
Lowe,
Sec. Statutes Anno- Florida provides as follows: tated Court, Moreover, speaking through this Holmes, held, Judge Webster v. policies; “222.13 Life insurance dis- position Revenue, Cir., proceeds any per- Commissioner of Internal “Whenever proceeds of life in- son shall die this that the leaving state insurance F.2d life, policies, on his the said surance the insured’s ex- insurance shall inure where exclusively ecutors, administrators, assigns to the were benefit of child or the policies children husband as beneficiaries —as in the or wife of named equal portions, person pass any person or to executor of the here —did not to the require for whose use and so benefit such insured’s estate as the in- policy; gross declared in proceeds is the thereof es- clusion insured’s purpose thereof shall in determining tate for to at- liable tachment, garnishment process tax. Th legal federal estate Court of Circuit Circuit, person Appeals construing favor creditor of for the Sixth insured, whose is life similar Tennessee statute in unless insur- a Proutt’s policy Commissioner, ance policy declares was Estate v. F.2d creditor; effected proceeds benefit of such held that also provided, however, policy the in- were not includable in whenever surance for the benefit of the estate of the decedent for federal estate of payable purposes.5 insured or to the estate estate tax text 154. Bank & Trust Co. of peals [4] 5 In 161, 162, for the United States v. First National Eighth Stuart, Circuit, dealing Minneapolis, Ap decree ment an insurance rather than in of the statutes Wisconsin and of the jurisdiction as whose of the here, Wisconsin court trust set authority said: will was separate “Here, up the estate probated instru- whose virtue will, dearly therefore,
It
even
appears,
phase
death.6
shall later
this
We
discuss
case,
decedent had not
the trans-
executed
of the
leaving
but before
considera-
fers
pol-
to the
estate of the insurance
tion
statute
the Florida
effect of
icies,
have
none of
makes the wife and children of
been
statutory
“receivable
the executor
insured
all
beneficiaries of
policies
executors,
payable
surance under
upon
insured,
administrators,
assigns
his own life.”
we wish
mention the
fact
necessary
is also
consider
appears
statute
to have -been called
second clause
811(g),
or that
attention
Had
of The Tax Court.
provides
for the inclusion
Court,
urged upon
the statute been
life
doubtless would
concluded that
the extent of the excess
policies
transfer of
was not
amount
“receivable
all other benefici-
nature of
distribution
aries”
as insurance under
taken
issued
decedent.
his own life.
statute,
payable,
were
We have seen that
the executor would
daughter
widow
the insured —the
not be a beneficiary under
the Florida
primary beneficiaries named in
trust.
statute as to the
Therefore,
the trust did
create the
merely
because the
daughter
wife
beneficiaries of
new
administrator,
the executor or
and it
guarantee
did
them
necessary
now
happens
to ascertain what
any subsequent
against
change of -bene-
to the amount
“by
receivable
all other
ficiaries
did make
$40,000.
beneficiaries” in
Under
excess
*6
right
a
income from those
fixed
the
prior
statute in existence
to
amend-
the
immediately
irrevocably available to
$40,000
ment of 1942 the first
such
of
considerations,
those beneficiaries. These
exempt,
insurance is
Section 811(g), Title
put
judge
been
before
of
the
proceeds
U.S.C.A. Int.Rev.Code. The
case,
The Tax
who decided the
of
receivable 'by
the
beneficiaries
would,
doubt,
weighed
heavily
have
no
most
executor,
other
subject
than the
the
to
against his conclusion that
the transfer
exemption
$40,000,
of
should be included
by a death
was dominated
motive.
gross
in the
estate of the decedent here
Finally,
unless the transfer
the trust
we shall
to
was
consider whether or
shown
trust,
contemplation
have been
in
to
not
the
created five
before
of
administered,
Congressional
inserting
purpose
the
of the
clause
insur-
of
(g)
ance were turned over
the
in
Tax Act
include
trustee
the Estate
insurance,
named in
said:
“It
therefore
the
the benefit of
seems
Congress,
enacting
daughter
the widow and
to us that
in
the insured
dear
provided
opinion
the will.
In
Revenue Act of
in
our
section 302
the
reasonable
there should
§
no
construction of
intended that
be induded
holding
pro-
gross
a
would warrant
estate of
decedent
the
these
his life
ceeds were ‘receivable
the executor.’
amount of
insurance which
full
subject
“Any
payment
further
discussion
after his death is
case
the
charges against
unnecessarily.
and the ex-
would extend
estate
of
penses
administration,
supported by
opin
conclusion is
and which
Our
able
of its
subject
1st,
part
5th
distribution as
ions of
and 6th Circuit
Appeals
arising
estate,
in cases
and that
it was not the intention
Courts
enacting
Congress,
(g)
in
in
subdivision
statute
which the facts
exempt
similar.
Estate
are
missioner, Cir.,
See Proutt’s
v. Com
of that section
taxation
meeting
tests,
591;
125 F.2d
Webster
al-
Commissioner,
Cir.,
payable
514;
in terms
F.2d
to some one
Deposit & Trust
other than
executor.”
Boston Safe
Co. v.
According
stipulation
Commissioner,
Cir.,
266;
there
d
Jones,
than the ones
Commissioner v.
62 F.2
here
also,
See,
Lucky
Commissioner,
$40,000,
involved in
excess
benefidarios,
were not What v. St. Louis was said Co., 39, 56 Union S.Ct sight We not lose of Sec. should Trust Int.Rev.Code, basic 100 A.L.R. Title U.S.C.A. —the therefore, “If, no It aptly here: section —the one that levies tax. said * * given in a provides property “A interest in involved tax' shall enjoyment, imposed possession net estate pass ‘from the the transfer of death,’ there or donor at his every citizen resident control of the respect the date is no dying United interest with added.) intended to (Emphasis has created enactment of this title.” part enjoyment at is that estate” take effect “net here, by grantor after or death. The which remains after his instrument, etc., no expenses, have been the in himself costs and left decedent, is, paid. ownership, possession, of a resume Code, enjoyment, except upon contingency meas- Internal Revenue subsequent, rights ured that decedent nature of a condition entirely It can- owned the time of death”. occurrence of fortuitous “at control, design, in his volition any not be far as measured definitely, irrevocably, lifetime he absolute- on was concerned. After ly conveyed away, conyeyed execution he no unless of the trust held away contemplation of death —actual or trust estate which in sense synthetic. testamentary disposition. Unless there is transfer prior passed death transfer His no interest to trust, enlarged there tax. beneficiaries *7 beyond conveyed none what was It is that was considered indenture.” good in creating health time of at the trust that made in contem- and it was not giftA inter vivos is taxable if its plation in of death in the usual sense provisions in are intended to take effect contemplate men death. is un- Jt death, possession enjoyment after at or disputed transfer that here vested gift is undeniable that the here was but it complete enjoyment possession and complete respects. in all policies insurance in the use trustees for reasonably Can concluded that it be the time benefit of beneficiaries at contemplation in man has made a transfer The gift of the creation of trust. he merely of death executes policies fully paid were absolute. all divesting instrument himself of up. They a cash value had surrender possible enjoyment insur- use of life $174,000. right There was no of rever- he transfers to those ance which who would sion control whatsoever retained automatically have received the right donor. The Trustees had the of such his death even they in whenever saw fit. cash had not if the insured created trust? $7,993.89 They collected as dividends on it Should be concluded that the settler making policies between the date of the thinking of the results to be death of the decedent. after his when in life, the crea- retain achieved The donor for his did not gave tion of trust he possession enjoyment trustees period, for from, to cash the insurance im- of, right or the to the income waiting mediately without for his right, in policies, or the either alone or present gave right— them conjunction any person, designate and also true, Tax divi- Even it be as The exercised—to collect reasoned, day for- Court that all from the dends reaches its greatest the death ward? value at Congress not nevertheless By process reasoning can what absolute, valid, undertaken to convert truly indulging said A in a sub- be complete gift into a causa' gift intervivos testamentary disposition when stitute for testamentary mortis or a substitute he B makes an now gift irrevocable disposition merely gift will because the B in given that which would have the law greater have a death of after the merely fuller A measure inaction donor. complete gift become after allowed paid-up, purchases one The fact his death? policies is single premium gift, praesenti, Does an absolute acquired nearly as indicative not wherein health—di- the donor—in robust would contemplation of death as reversion, title, vests himself of acquired he control, pos- or right and wherein Evidently one premium plan. annual session and title of would expects early dissolution an who irrevocably placed the hands trus- pol- his procuring interested in much more tees present use and benefit during premium an annual paying icies donees, support an inference that the he than span of life remaining short was “in intended of or premium, and single paying a be in take effect evidentiary purchase, nothing there is ? after death” purchase, of manner of or the Can rightfully the estate of a question justified here that liable adjudged for a tax on design creation saying that the “receivable the executor” which being empha- heavily were such of the trust was, become, never never could with the in connection sized considerations property of that estate? death of the decedent. anything Is significant there odd or Georgia, In Allen v. Trust Co. of testator, the fact that four 326 U.S. the trust made a will making agreement, Douglas, Mr. Justice daughter wherein like- wife Court, the other "On affirming this said: wise residuum of beneficiaries hand, every making gift man knows his estate? gives away today will not be he what necessary to state the for us All estate when dies. cluded questions. obvious answers these several in con- gifts plainly are templation statutory sense. death in the proscribes Neither federal nor state law *8 ' Many gifts, those are the placing even to who property of objects do- appropriate natural managed for the benefit an wife. invalid bounty, ‘purposes nor’s motivated The does not are estate tax statute debar such life, with rather than with the arrangement, says an associated merely right or if sion or its donor, becoming you reserve “If enjoyment, or the you effective income, do unto this in only or yourself income, right your posses- or the of re- of distribution U.S. at 452, a wide death.’ United States 75 range. L.Ed. page 118, property in See 51 1 Those motives cover Paul, S.Ct. v. Wells, supra, Federal anticipation [446] at Estate page 283 (1942) seq. Taxation 6.09 et per- & Gift verter, designate such §§ or may recognize ‘There desire to possess be the enjoy you sons as wish to special exigencies termination, discharge needs or al- or the amendment, obligations. gratification The teration, moral your shall may compelling be a more such desires in the nature of a testa- be considered as any thought of palpable motive than death.’ United disposition, or as a effort mentary Wells, supra, page 283 taxes, v. U.S. at you shall not States which to evade 119, 452, page L.Ed. 51 75 867.” S.Ct. escape.”
741 Tax Court It is be overlooked that cases not to cited up. fully of Arthur D. case were case were its own of Estate gone the com- 7 T.C. Cronin, 1403, reversed The trustees have which was could 3, 1947, panies money December to the bank and borrowed by the Sixth Circuit on Cir., Graham, They 5 them. could have surrendered case Thomas our v. value, policies, 561, the tax- cash 158 taken the surrender F.2d which dealt implied reten- ability of invested in securities having an their in the own or hin- choosing tion cor- without leave reversionary of a interest drance collect pus, required They assets from did the insured. retention such a trust included dividends for five to be before insured’s the donor since decision death. Under the Florida Statute ever 106, Hallock, assigned 309 U.S. v. could have been 444, 604, West, 128 security 60 A.L.R. 1368. loan 125 S.Ct. L.Ed. [Bancroft 193, 327], Fla. 174 So. or the re- the Sixth Circuit bequeathed could have been versing The Tax the Cronin Court in “any manner other effects “ ** may we was said: think it possessed” [222.13, not, truth, security be said financial F.S.A.], Concededly, pay- the insurance complete residing loan and control of able to beneficiaries other the executor than present value is surrender would have been includable in the subject matter gift, even of a estate of decedent under Sec. its actual utilization may prove to be un- assigned had the insured not necessary.” irrevocably, provisions and “without Supreme Court, Wells, in Burnet corpus return or reversion of either 761, 670, 679, 764, him,” U.S. text by a transfer where- income “A policy said: of life by the use im- took effect susceptible mediately. own- contract ership like in action.” chose thought Tax Court since insurance policies acquire Court, through their Judge speaking This McCoach, greatest in- said, Cir., Holmes, death of in Griffin v. sured character 'policies 264: “Modern F.2d testamentary dispositions. Any con- indemnity longer are mere clusion that makes value the of whether contracts, prop are test the asset Russell, is to be includable in the estate erty Grigsby v. (Citing values.” 133, of is unsound. Value of Ann.Cas.1913B, interest time N.S., 642, 863.) L.R.A., taxability, quantum, determines the following statement See also the interest. Estates, Montgomery’s Federal Texas — Gifts, 1947-48, 548: Trusts, page In Walker v. United 104 was stated “All life prior regulations and the pres- “Under surance on life is not of decedent amended, ap- ent date Code per testamentary” to estate se tax January T. D. proval of in character. importance. 404(c) of the See extreme *9 Int.Rev.Code, U.S.C.A. § Act [26 Fidelity & v. Columbia Trust Co. supra page 546. quoted C., Glenn, Revenue, note] of Internal D. Collector F.Supp. “All the Court said: pre- a policy on which no “In the large life insurance is testa extent January after miums were character, mentary in contem that included in the none the plates property upon the transfer the if, by an irrevocable gross estate death of the accordance with means, insured or some other assignment the dece- the of the directions decedent. But parted all of own- incidents dent despite prem- all of the ership the fact that characteristic does not itself make it * * paid by (Citing following been him.” taxable the ums had Cir., cases: Walker United When v. of The Tax 103; Helburn, F.Supp. F.2d Ballard Court is v. shorn of the considerations revolv 812; Sharp, ing Commissioner v. subject-matter around of life in surance, 804.) and when it made known by beneficiaries of state the trust question The character- here is not statute beneficiaries of the value, matter, subject istics of the nor its policies, without execution of the trust by is the same as Mr. stated Justice agreement; and is seen when it Hallock, supra Frankfurter in proceeds of the policies life insurance “Whether [309 447]: question never, would under trust in by the transfer the decedent law, strument or under the become a pos- lifetime is ‘intended to take effect part decedent, of the estate session his death’ at or after never subject payment debts or by retained, which reason of that he to be by administered administrator or problem.” crux executor, would never revert owner insured nothing retained in this ship, possession, enjoyment, or control of case. would never be Section is a of Section 811. any power in him to designate amend or to subparagraph placed When in im- (g) is others parties than the named continuity mediate the basic and initial possess enjoy the property or its paragraph, reading is as follows: fruit, would not have to 'be deferred use gross “811. The value by estate until beneficiaries by decedent shall includ- be determined there will ing the value the time death of be complete found to be a absence evi dence, personal, tangible all real or basis, or of evidentiary for the intangible, situated, except real drawing wherever of a sup reasonable inference to port situated United the finding outside of The Tax Court that States— the trust was made in death. re-
“(g) To the amount extent of the judgment under by ceivable executor as insurance Tax Court is re- policies by upon taken the decedent out versed. life; own the extent $40,000 SIBLEY, amount receiv- over Judge (dissenting). excess by all beneficiaries as insurance able judicial travail Much administrative by under taken the decedent out can, think, by applying I be avoided supplied.) upon (Emphasis his own life.” simple, plain which words of statute therefore, problem, Lewellyn is to (See find it since have been in gross Frick, 268 U.S. require his death 934), at the time be included receivable receivable the executor or the value of of a decedent under the amount property, “(g) all other beneficiaries To extent of upon his by the decedent own the executor as insurance receivable no value present case there taken life. In the out life; upon decedent at the estate of the his own the extent of and to insured of the amount time of the death of the the excess over unless beneficiaries which he theretofore transferred receivable all other it in the face taken had transferred surance Clearly 811(c). life”. of Section his own This court restrictions up was in very recently he set no wise out been admonished Congress plain which must an Act of are to harmony (c), with subsection words in *10 by given whether trust es- their full effect the courts applied to a determine notwithstanding doubts of a de- serious of consti- included in the estate tate should be may arise, question tutionality and that the un- ascertainment of value cedent after constitutionality ought be faced and 811(g). to 811 and subsection der
743 Cir., 591. Commissioner, 125 v. 6 by evaded construction. decided and not and procuring But Sullivan, 331. within two 68 S.Ct. weeks United States v. decedent policy the question paying for the last no plain The are here and words wife assigned for his all trustees by their them to constitutionality engendered power children, reserving no application. full longer no The Florida statute himself. net The included the Commissioner here policies were any application, for by amount “other beneficiaries” received estate. payable longer to the insured’s (the exemption been ex- having was to assignments effect pol- by insurance) hausted on these beneficiaries, assignees substitute as undeniably by icies taken out control vest in them the paid to premiums his own all life with had him, the insured by of over the insurance which grounds: on two “The ** * Bingham before. See United part v. formed 180, 211, 217, page U.S. meaning estate within the about nothing 160. There was 811(g) Section Revenue L.Ed. Internal ** Code. In for the the trust itself make revocable or the alternative trustor, retain so the they (the policies) reason were trans- interest that * * * ques- contemplation assignments Our stand absolute. ferred of, is, Do or intended tion to take effect in on his own life under Sect. or after his within death meaning 811(g) they assign- Section cease to are 811(c) the Inter- nal wholly Revenue Tax ed bene- way Code”. The to trustees ignored the former sustained ? ground and ficiaries good. latter. I think the plainly former say so. To its The statute does not qualification, ambiguity in the words clear be added
There was
words must
some
life”
them
“provided
assign
on his own
the decedent did not
“taken
applica-
Now
dying”.
before
as whether
referred
to his beneficiaries
5032,
Treasury
policy,
appears
Decision
tion
issuance of
for and
from
premiums.
date
payment
until
issued
Jan.
27,
80,
premiums
Regulation
touching
were the most
concluded
Article
that the
matter,
discussion,
regulations
provision
added to
substantial
under
had
upheld
Lang
v. Commission-
these: “if the decedent
statutory
effect were
words
er,
880,
1331,
possessed
82 L.Ed.
at the
U.S.
S.Ct.
time of
ownership”.
the a-
legal
118 A.L.R.
and confirmed
incidents of
This
was,
mending
important narrowing
Act
There is no such
of 1942.
of the statute
here,
believe,
all
question
beyond
regulatory power
deceased
I
Department.
precise
Treasury
all issued
applications,
were
him,
premiums, question
decided with reference
and he
so
premiums.
provision
At
tariff Acts in Morrill
single
for the
most
Jones,
L.Ed.
“Execu- v.
S.Ct.
first the
were
U.S.
Welsh,
tors,
U.S.
assigns”
administrators
Merritt
v.
regula-
facts that the
statute of Florida
time,
for some
not “receivable
execu-
tion
stood
reenacted,
children,
statute
former
belonged
tor”
to his wife and
had been
held
disposition by
had to be overturned were
to other
the decisions
applying
court
from
during
life.
If the
to excuse
insured
provision
another
of the Estate
law
till his death the first clause
continued
correctly,
previous
applied,
overruling
not have
of Sect.
would
Hallock,
Commissioner,
incorrect decisions.
held Webster
we
106, 60
But the
transferred about would be companies larger language for a the clear benefit statute.” perfectly (under F.Supp. page This states the Florida and children wife accrue the case. statute) them *12 tois special intent the fact of
But if the Tax all, the conclusion
be tried first amply two sustainable. Court ordinary type apparently policies are four, con- insurance. The last family insurance, great bulk of stituting the month, awith single ain were obtained $150,000. There outlay of
cash about an investment than
more of
purpose. The created receive
assignments of in the executors
trustees were named later, four
will executed the insurance and
trusts of bene-
touching had the same The will had powers.
ficiaries similar revoking former wills. clause experi- a wealthy remarks that Court till hardly man wait
enced business sixty-eight years make his old to similar
first will. inferred another probably about
will had been executed trust, or creating
time the insurance any event the that in trust was testamentary plan, and thus
contemplation of death. This conclu- fact think is
sion warranted. I denied; SIBLEY,
Rehearing Circuit dissenting.
Judge, ASPHALT CO.
TRINIDAD MFG. et al. GREGORY TRINIDAD et al. v. ASPHALT
GREGORY MFG. CO.
No. 12151. Appeals, Fifth Circuit.
March