State Street Trust Co. v. Treasurer & Receiver General
209 Mass. 373
Mass.
1911
Check Treatment
Braley, J.

The question presented by these cross appeals *378is, whеther the bonds held in trust by the plaintiff are subject to a succession tax under St. 1907, c. 563, § 1, now by codification St. 1909, c. 490, Part IV. § 1. The tax imposed is not upon thе property itself, although its value is made the basis of taxation, but on the right of transmission, where under the deed, grant or gift the property is not tо vest in possession or enjoyment until after the death of the grantor, donor or settlor, or, if not expressed, such intention is found. Emmons v. Shaw, 171 Mass. 410, 413. St. 1909, c. 490, Part IV. § 1.

It is the first contention of the defendants in the second appeal, who are the beneficiaries under the trust, that they are exempt, as the transfеr of the property in question became complete in the lifetime of the donor or settlor. By the terms of the instrument creating the trust nо power of revocation is reserved. The test, however, by which the exemption is to be ascertained does not depend upon whether a power to revoke has or has not been inserted, but upon the passing of the property with all the attributes of ownеrship independently of the death of the transferror. It is the absence of the power of control with the unrestricted right of the reciрient to dispose of the property and to receive and use the proceeds, which by the express language of the statutе subjects it to the tax. Crocker v. Shaw, 174 Mass. 266, 268. New England Trust Co. v. Abbott, 205 Mass. 279, 282. Matter of Brandreth, 169 N. Y. 437, 442. Vanderbilt v. Eidman, 196 U. S. 480, 493. The defendants were to receive the income of the bonds in equal shares, and neither they nor their respective donees, if the power of appointment was exercised, nor their respective next of kin, if it was not exercised, were to receive the principal until the death of ‍‌‌‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌​‌​‌​​​​‌​​‌​‌​‌‌‌‌​​​​‌​​​‌‍the settlor. If the income was payable to them, the intention of the settlor is plain, that the principal, even if it vested in title, was not to vest in possession and enjoyment during her life, and the defendants have failed to bring themselves within this exception. Crocker v. Shaw, 174 Mass. 266. New England Trust Co. v. Abbott, 205 Mass. 279.

The declaration of trust makes no reference to any consideration, and on its face the transfer was а gift. But from the agreed facts it appears that the settlement was made because the settlor, Annie Preston Lincoln, who was advanсed in years *379and in feeble health, desired to secure during her life the services and companionship of the defendant, Edward Friebe. In рerformance of the contract he resigned a lucrative position to enter her service, and removed with his wife, Abby F. Friebe, to hеr residence where they continued to reside and care for her until her death. It is because of the consideration thus furnished, that they аlso rely upon the further provision, that where the transfer is “ a bona fide purchase for full consideration in money or money’s worth,” a tax shall not bе levied. To have the benefit ‍‌‌‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌​‌​‌​​​​‌​​‌​‌​‌‌‌‌​​​​‌​​​‌‍of the exemption they must bring themselves within its terms. St. 1909, c. 490, Part IV. § 1. Brooks v. West Springfield, 193 Mass. 190, 192. The policy of the law is, that the owner of property shall not defeat or evade the tax by any form of conveyance or transfer, where after death the income, profit or еnjoyment enures to the benefit of those who are not exempted. Minot v. Winthrop, 162 Mass. 113. Emmons v. Shaw, 171 Mass. 410, 412. The intention to evade may be apparent in the instrument of transfer, or it may be found when all the circumstances attending the transaction are disclosed, yet from whichever source the proоf may be derived, when the evasion is established the transfer is not “ bona fide ” as required by the statute. The transfer or conveyance, however, would not be invalidated, or the tax defeated, ‍‌‌‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌​‌​‌​​​​‌​​‌​‌​‌‌‌‌​​​​‌​​​‌‍as the fund or property would be liable to taxation in the possession of the grantee, donee, or transferee. Tritt v. Crotzer, 13 Penn. St. 451.

The statute also requires that the consideration must be for the full value of the property whether paid in money, or the acceptance by the transferror of property or services, or some benefit of an equivalent pecuniary measurement, and the defendants strongly urge that the principle which obtains between vendor and purchaser, or where prior еquities between purchasers of the same estate, or the rights of creditors are to be ascertained, should be applied. To sustain a right to specific performance of an unexecuted contract, or the rights of an innocent purchaser for value and without notice, it is not necessary that the consideration should be adequate, although it must be valuable. Somes v. Brewer, 2 Pick. 184. Lee v. Kirby, 104 Mass. 420, 428. Wood v. Chapin, 13 N. Y. 509. Borell v. Dann, 2 Hare, 440, 450. Basset v. Norsworthy, 2 White & Tudor’s *380Lead. Cas. in Eq. (4th Am. ed.) 1. But under the cоnstruction contended for, only conveyances or transfers founded on a good or meritorious, as distinguished from a valuable consideration would be included. See 2 Kent Com. (14th ed.) 464, 465, and Floyer v. Bankes, 3 DeG., J. & S. 306. It also places within the power of the parties the right to agree upon a priсe in money, or on some right, interest or benefit accruing to one party or the other as a basis of transference, which, while recognized as being valuable, might be wholly ‍‌‌‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌​‌​‌​​​​‌​​‌​‌​‌‌‌‌​​​​‌​​​‌‍inadequate when compared with the fair market value of the property. It furthermore would substitute thеir judgment, although honestly exercised, for the approval of the tax commissioner, who by § 20 alone is empowered to determine thе valuation.

The legislative purpose has been expressed in plain, unambiguous words, and a construction should not be adopted by rеading into the statute a qualification which deprives them of their ordinary and natural import. It is within the power of the Legislature to enlargе the exemption, but until this is done, the statute is not complied with unless the consideration, whatever form it may assume, is not only valuable, but full, by covering the value in money, or the equivalent in money of the property transferred. United States v. Hart, 4 Fed. Rep. 292. United States v. Banks, 17 Fed. Rep. 322, 323. If services rendered or to be rendered constitute the consideration as in the present case, their value may be inquired into and ascertained, and where in “ money’s worth ” they equal or exceed the fair value of the property at the death of the transferror, no tax can be imposed. If they fall below such value, there is no provision for a reduction, leaving the excess only to be taxed as a gratuity.

The services to be rendеred by Edward Friebe, when viewed from the situation in which he and Mrs. Lincoln were placed, even if estimated on the basis of his salary and earnings received in the position he left and then capitalized on his expectation of life, exclusive of the ‍‌‌‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌​‌​‌​​​​‌​​‌​‌​‌‌‌‌​​​​‌​​​‌‍contingency, that if he had continued in his former employment he might have been discharged or have become incapacitated, are insufficient in amount to equal one half of the cash value at her death of the bonds as stated in the petition and admitted by the defendants.

We are thеrefore of opinion, that, while the appeal of the ben*381eficiaries cannot be sustained, so much of the decree of the Probate Court as held that the bonds were not subject to taxation must be reversed under the first appeal, but in all other respects it is affirmed.

Decree accordingly.