*1 exist, finding special whether, at all—would not be a if that barrier did risk of plaintiff negligence. under an state a claim could taking. implied In Al- or for a contract summary The defendant’s motion Company v. liance Assurance States, judgment granted petition 2, 1958), (C.A. 252 F.2d dismissed. volving cargo in did not which arrive mails, through country custody goods disappeared from the in and “the manner

the Customs Bureau they remains have vanished mystery”. Appeals Court of (a) implied-in-faet" there under contract of bailment redressable MANUFACTURERS HANOVER TRUST Act, (b) im- the Government Tucker COMPANY, as Executor of the Last pliedly care, (c) promised to use due Caryl Will and Testament of Hackstaff discharge failed the Government Deceased showing negli- burden that it gent. Company In its Marine Insurance The UNITED STATES. distinguished case, the Second Circuit No. 191-67. ground Alliance Assurance on the United States Court Claims. postal the latter did not concern ormail May 16, 1969. matter. 378 at 814. F.2d This clearly correct, accordingly we need

not consider whether we would follow appropriate Alliance Assurance in an implied case and that there hold is an taking. question contract re- or a That open mains in this court for non-mail items dealt with Bureau Customs way plaintiff’s package insured’s of emeralds handled. holding, Circuit’s Second prior action, that this was mail matter enough by dispose itself to

present case, judges some of (though all) go further and estopped by

rule that is also portion Appeals’ the last of the Court of opinion (378 814-815). F.2d at Those judges part read that holding

an alternative that the Govern- ment stances, exercised care in the circum- jewels package

and that the “exposed any special was not risk”. view, On that would be claiming barred in action from showing negli- the defendant was gent therefore, parcel even if the mails, were outside the breach ob- ligation Similarly, proved. could be judges prerequisite these believe that a taking to a determination any taking found could situation —if *2 grant-

the defendant’s motion should be ed. duly appointed Plaintiff is the here acting executor of estate Mrs. Caryl Wood, died testate Hackstaff who 3, provided

on October 1957. Her will husband, Jr., that her Howard O. residuary legatee of was to be the sole estate, her which included date of at the Mrs. death securities Wood’s certain having $65,871.- a fair market value 47, and this value was included gross pur- estate for federal estate tax poses. undisputed times all subsequent un- to Mrs. Wood’sdeath and May til securities by plaintiff Mrs. as executor of legal ca- and in no other Wood’s estate pacity. April 9, 1964, On Mr. Wood died tes- tate, leaving his estate his two chil- April 23, 1964, plaintiff dren. On appointed executor of Mr. Wood's estate. gross Included in Mr. Wood’s estate was the fair market value of his interest in his wife’s which was still un- dergoing administration at the time his ‘death. On the date of Mr. Wood’s volved suit and held Wood’sestate was Bentley, City, May York 19, May New 20, On Edward S. and on plaintiff. on behalf of Mrs. Wood’s $160,742.09 estate sold the securities for Washington, Ballard, Jr., William C. ordinary course of adminis- Atty. C., Asst. Gen. with whom D. pro- tration of Mrs. estate. The Walters, for defendant. M. Johnnie purchase ceeds the sale were used to Kovner, Joseph Philip R. Miller Treasury $160,000 of United States C., Washington, counsel. D. maturing in 1965. *3 of estate, Mrs. Wood’s amended income tax for sold the return Mrs. securities return, plaintiff it did so Wood’s estate. In that at the direction of the long-term estate, executor of Mr. claimed that instead of the Wood’s also the plaintiff gain Continuing capital reported fiduciary re- bank. on the same line, plaintiff turn that maintains the fact only capital gain by that the realized a short-term securities were sold the exec- $975.46,1 estate, utors of of the the between instead of difference by 9, 1964, April estate, executor of her value of the securities on husband’s is immaterial the date of Mr. that ob- funds price pay tained from the sale used sale of Plaintiff filed the federal estate taxes of Mr. a claim refund based on the amended light, estate. and, upon Viewed in of the return the disallowance estates merge claim, plaintiff seem to suit in least this court followed. —at have believe us this—so that Mr. Although legal on which basis estate, and later his were in control all entirely plaintiff recovery not claims along of the securities held the estate theory clear, plaintiff’s as be of Mrs. Wood. follows: attempt explore We shall not of As the executor Mrs. Wood’s many problems that would arise plaintiff administering bank adoption of a rule which rests on the estate for the benefit of fact that the executor of two estates is residuary legatee, sole and later for Mr. entity. merely the same We note the plaintiff Wood’s estate of which the unfair effect of such a rule on the es- Thus, bank was also executor. decedents, tates of related when those plaintiff says, died, when Mr. Wood being by sepa- estates are administered beneficial interest in Mrs. Wood’s estate rate entities. vested under will and personal property the passed problems title to his Aside from the mentioned executor, plaintiff above, to his there are several serious obstacles bank, plaintiff’s right recovery. so that the executor plaintiff’s position estate received all the with first a that collides equal squarely provisions basis fair market value with of Section as of thereof the date of Mr. Wood’s of the Internal Revenue Code of 1954.2 posed 1. Plaintiff admits that the estate of before tbe decedent’s death amount, person, owes a tax on such be the fair market why has not made clear it makes at the date of the decedent’s presume plai death, or, this concession. We in tbe case of an election under (j) ntiff admits that it owes the tax- as execu either section 2032 or section 811 only tor of holder of as Code 1939 where and as 21, 1942, the decedent died after October agent for Mr. Wood’s estate. applicable its value at the valuation date prescribed by applicable, 2. those as sections. § Insofar 1014 reads as “(b) Property Acquired follows: From the Dec- Acquired Property purposes (a), “Sec. 1014. Basis edent. —For of subsection Of following property A From Decedent. shall considered “(a) Except acquired In General. as otherwise to have been from or to have provided section, prop- passed basis from the decedent: erty person acquiring “(1) Property acquired by of a bequest, hands de- vise, inheritance, from a decedent or to whom decedent’s property passed shall, from a decedent estate from the decedent sold, exchanged, if dis- otherwise plaintiff’s Finally, 1014(a) it seems to us states Section per position manner is inconsistent of a the hands property from a the estate acquiring handled son market value treated Mrs. Wood. Plaintiff decedent shall be separate wholly the time Mrs. Wood’s estate as 1014(b) (1) entity from Mr. but in Section decedent’s death. provides original a decedent’s specifically, fiduciary both the income tax ac to have considered shall be return filed and in estate quired property December the decedent from the amended return filed December general ba applying the purpose 1964, plaintiff recognized any 1014(a). There capital rules Section sis come received result of legal purposes for all gain doubt that realized from the the securi- sale of *4 ex estate as held Mrs. ties in 1964 to the estate of was taxable in it sold the securities ecutor and that Mrs. Wood. saying acting capacity. In that in 1964 Plaintiff has not that a differ- shown pay the sold to securities were that justified by any ent conclusion is law by Mr. Wood’s estate taxes federal the State of York New where the estates that the fact plaintiff overlooks administered, by any provision of the securities 1964 sale it was the Code, by any controversy. engendered which court decision. Therefore defendant’s as only those sold Plaintiff grant- summary judgment motion for estate, but the executor of ed, plaintiff’s petition is dismissed. Treasury Notes them it reinvested or distribute *5 authority case, the the of above pass- fix time title er the at the to value equitable the title to the stock the the for de- ed from termining gain decedent as basis at the moment Mrs. of Wood’s death. upon sale of the loss The executors of property the before or after of took title in trust for the benefit of Mr. The court the decree of distribution. by Wood. made The sale them could no reason to differ- there was held have been made him or for his of real entiate between the value estate specifically estate. above case specific bequests at the time of and states that when the is 'distribution property other at the death value of made, legatee the title the of relates date of the decree of distribution and back to the of the the date death of Congress the Act of indicates an in- Applied case, decedent. to our this tention that the at the time of value proceeds means that the when of the of taken death the decedent was be stock, sale of the which was later rein- the basis in all The court said cases. vested in then sold the bonds and appears why “There no reason be proceeds to Mr. distributed Wood’s es- gains or losses to estate the should be tate, the title of his estate to the stock calculated on and those to the one basis related date of back the of the death residuary legatees on another.” although Mrs. Wood and the sale of by stock was made executors in the estate, will be It remembered in that name of Mrs. Wood’s in truth legatee the decedent case by left stocks and in fact it made for was his estate disposed will. The stocks of in and for his legatee course to the and he later returns, words, them. In his income tax other sold title Mr. Wood computed profit comparing legatees, loss and later in he selling price stocks of the with its stock left to him his wife related of back to at the date decree distri- the date of Mrs. value of the Wood’s death at of the date of the the time of bution instead at the distribution to him of proceeds of The court of death the testator. of sale the stock. Therefore, my opinion, position of the date of death decedent of government wrong controlling date stocks is and that of the be valued that time must as of and not is correct. the time distribution.

at date significant It seems to me that government us, Applied to the before has admitted that if the ex- time of ecutors of Mrs. means me that at the Wood’s estate had dis- you property immedi- how do deter- to Wood the stock tributed death, found ately mine it? The answer is after Gage, supra. statute and in Brewster recover case. entitled to argument, government By is Their basis the fair value of is market property contending at the date of the of distribution death that the date “decedent,” stage controlling not the This is which at date. law, title to the the date the death of Mr. Wood. Mr. Wood’s because at date death to the date death value of his stock related back This $159,766.63. longer Wood, according We are no con- above case, regardless of the cerned with date distri- of death of Mrs. the date property nor the value of the stock. bution Also, when she died. it is immaterial 1014 of accord with Section This is in that the left Mrs. Wood was Code, says in a different form at time Mr. acquired that the Wood's death. the fair person shall be from a decedent Accordingly, when the the date of the market value $160,- after Mr. Wood’s death confusing of the decedent’s 742.09, equitable in his title was aspects are that we have this case legatees, and when distribution was administrations with two deaths two made to Mr. title necessary executor. the same related back to the death of Mrs. Wood. property at the consider value When is distributed to the get proper ba- date of each death their When we sis for each successive owner. death, will relate back basis, date this, date of Mrs. at the do we see that and their which is what we are property had a really here, concerned with will be *6 agree parties to this. All property market his at legatee, Therefore, Mr. death. property equitable this the value, title Most of the confusion case was any subject payment way caused executor handled argument, At oral Wood. debts and filed returns. the administra- it made clear erroneously considered that both independent of tion of her estate equitable and unpaid there the court and that inwas the estate of Mrs. Wood until the Consequently, no need there was debts. date of distribution Mr. Wood’s estate and for further administration government after his ing advantage death. is tak- with entitled Wood was of this situation mak- But for some unknown the above basis. ing appear it that the date of distribu- reason, it did not distribute the executor tion fixes the value for the date estate opinion, my did In this not af- to him. By Wood his and equitable title fect his and means, original seeks have the val- property. forced dis- He could have ue determined as the date of Mrs. leaving point, died At he tribution. ignores then death and the value will as his children at the date of death of Mr. not- legatees. This the second his sole withstanding the fact that we are con- new have a date and now cerned with value at the time of basis of death and new his I think the two deaths and equitable legatees hold the who the two sepa- values must be considered subject payment title, rately if we are to follow the statute and gives debts, any. to the real if This rise Gage. Brewster v. case, question my parties opinion, and overlooked have been here is, majority, maintaining should be what is considered legatees suit for the estate Mr. of Wood’s and for who hold the beneficial property. to the deny I the defendant’s motion assign judgment summary trial.

Joseph WHITE, Jr., A. et al. Affinito, Pittsburg, Alfred A. Cal., attorney plaintiffs. record for

The UNITED STATES. Sigmond, Washington, Howard O. C.,D. Acting Atty. 32-66. whom No. Asst. Gen., Taylor, E. Glen for defendant. Court of States Claims. f COWEN, Judge, Before Chie May 1969. LARAMORE, DURFEE, DAVIS, COL LINS, NICHOLS,

Judges.

OPINION Judge.*

NICHOLS, alleged This case involves breach by the defendant of a contract in which agreed the defendant to sell certain sur- plus realty plaintiffs. plaintiffs It is our are recover, entitled since the evidence clearly in the record shows defendant breached the contract between *7 parties. The court has a difficult however, problem, in connection determination of the amount plaintiffs because defendant’s wrongful action. realty present involved in the parcels consists two land which formerly part Camp were Stone- Military Pittsburg, man Reservation in Camp California. Stoneman was declar- surplus ed needs the United prior pro- States sometime provide disposal cedures surplus property initiated the defendant’s General Services Admin- * necessary explain fully We are indebted to Trial Commissioner the reasons prevent memorandum Mastín G. White for our decision and to future agree findings opinion misapplication precedent. of fact. We We adopt extensively with the the latter former have borrowed from the com- opinion. with minor revisions. We consider missioner’s memorandum scope preparation of an of normal Notes As executor COWEN, Judge, and Chief Before estate, plaintiff duly filed a DURFEE, DAVIS, LARAMORE, COL- fiduciary year income tax return for the NICHOLS, LINS, 1964. The return showed that Mrs. Judges. long-term estate had realized a capital gain from of the securi- the sale MOTION FOR ON DEFENDANT’S $94,870.62, which ties in the amount of JUDGMENT SUMMARY represented the difference between price their COWEN, Judge. of the securities and sales Chief market value as of the date of an income refund This is also death. Mrs. Wood’s estate defendant’s court on comes before reported and interest income dividend summary judgment. All the motion to the securities. attributable reasons stipulated. For facts are acting July plaintiff, plain- find the opinion, stated recover, executor entitled is not tiff Treasury pro- Notes and distributed the corollary argument, As a ceeds estate of O. Howard contends that the executor of Mrs. Jr. Wood’s estate and the executor of Mr. 31, 1964, plaintiff institution, estate were the same On December as ex- plaintiff, and that when ecutor of Mrs. filed as the executor

Notes

notes did not sell Judge (dissenting): sep a proceeds Mr. Wood’s respectfully dissent, than a I entity, more legal until because I think arate majority opinion contrary year later. Supreme decision Court in Brews- argument that the two es Gage, 327, 115, ter 280 U.S. 50 S.Ct. regarded merged must be tates (1930) 74 L.Ed. 457 and also is in con- residuary as the one because flict with Section 1014 of the Internal beneficiary legatee, the sole was estate, (1954). Code Revenue concept ignores that The case us is before a New York case separate enti a decedent’s estate is each ty, governed by and we must be the laws of which as the distinction as well respect that proper- state with to title to between in tax cases courts have made ty. Gage The above case of Brewster v. ultimate of decedent and the estate a a was likewise New York case and is Columbus, legatees. Ohio v. Y.M.C.A. squarely point here. 291, 47, 68 L. Davis, 44 S.Ct. 264 U.S. it is true that in that While case the (1924); Illinois Continental Ed. 558 court in the State of stated New Chicago v. Trust Co. of Bank Nat’l owner, upon York the death of the States, Ct.Cl. F.2d 185 403 passes to his to his real estate heirs or 973, 89 denied, U.S. (1968), 394 cert. 642 applies and that a different rule (Apr. 1456, 22 L.Ed.2d 752 S.Ct. person- personal property, the title to Gage, 1969). 280 also Brewster v. See al does vest once L.Ed. 74 50 S.Ct. U.S. legatees. upon heirs or But the death of Supreme Court (1930), in the owner there of them vests in each of a upon the death declared right to his share in the right legatee decedent, no title has right after administration property ex personal any particular upon entry have it of the de- delivered right share of distributive cept goes cree of distribution. The court on proper administra after remains what say personal prop- that the title to all tion. death, stock belonging erty vests worth to the estate $65,871.47, accept and must executors but that val- administrators themselves, ue for the stock at the time of her title is taken not such proper death. At time of others but death, $159,- and for dis- securities were worth the estate administration 766.63, accept The court said and we must residue. that value as tribution being the true at the time confers value the decree of distribution merely right, identifies the securities were later new requires Consequently, remaining ad- tax due to deliver would be or executors difference between ministrators said, stock then “The value of the at Mr. court The given to the death back and its at the time the title so relates secu- [Emphasis sup- rities were sold. the death.” date that at the time plied.] The court said my opinion, it matters not death, legatee be- testator’s executors of Mrs. Wood’s estate had not prop- came enriched worth distributed the stock to Mr. Wood before erty left him notwithstand- and that nor estate after his ing postponement transfer of the death before the stock was sold. Under him, Congress pow- had the