Serrien v. Commissioner

OPINION.

Milliken:

Respondent has included in the gross estate of John Serrien, hereafter referred to as decedent, property which he had prior to his death given to his children, and also certain other property which respondent claims decedent gave to his children but which petitioner claims was their individual property. The total value of the property thus included was $75,578.73. Respondent proceeded under section 402 of the Revenue Act of 1921, which in part reads:

Seo. 402. That the value of the gross estate of the decedent shall be deter*mined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated' — •

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(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money’s worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.

The question presented is whether decedent made the various gifts to his children “ in contemplation of death ” as those words are used in the statute. There is also involved a further question whether certain of the notes represented money which was the property of decedent. In Spreckels v. State, 30 Cal. App. 363; 158 Pac. 549, the court said with reference to the term “ in contemplation of death ”:

The language referred to was not intended to include that general expectation of death which is the essential concomitant of the inherent knowledge of Ihe inevitable termination of all life, and which, is in the young and physically robust as well as in the aged and the infirm. No similar statute has been so construed. A reasonable and just view of the law in question is that it is only where the transfer of property by gift is immediately and directly prompted by the expectation of death that the property so transferred becomes amenable to the burden; or, as counsel for the respondent with singular aptness states the proposition:

“ It is only when contemplation of death is the motive without which the conveyance would not be made that a transfer may be subjected to the tax.”

The above excerpt was quoted with approval in Appeal of Spencer Borden, Jr., Executor, 6 B. T. A. 255. See also Appeal of Philip T. Starck, Executor, 3 B. T. A. 514.

The gifts made by decedent fall into three classes — first, those made more than two years prior to his death; second, those made within two years of his death, but prior to October 28, 1922, the date on which he was first informed of the nature of his malady, and the fact that he could not expect to live more than a year; and, third, gifts made after that date.

It is shown by the record of Dr. Kiel that decedent never had a serious illness in his life prior to his then present trouble and that he had felt well until six months prior to examination which took place October 20, 1922. This fixes the date decedent first experienced discomfort at about April 20, 1922. These facts dispose of all the gifts made prior to April 20, 1922. It is clear beyond a doubt that prior to that date decedent was not contemplating death except like all mortals he knew that sooner or later he must pass over the river. No gifts prior to that date were made “ in contemplation of death ” as that term is used in the statute. The only gift made after April 20, 1922, and before decedent was examined by Dr. Kiel was the gift of the farm to his son Ludwig. This gift was consummated on May 29, 1922, or only about one month after decedent first experienced any trouble with his stomach. At first this trouble was an accumulation of gas on the stomach. This grew gradually worse. The matter was considered of such minor importance that decedent did not employ a physician until the early part of the autumn of 1922. Again, we are of opinion that the gift of the farm to Ludwig was not made in contemplation of death and should not be included in decedent’s gross estate.

When we come to the gifts made after October 23, 1922, a more difficult question is presented. At the outset, however, we point out that the note of Sophia Gottbert, dated November 1, 1922, and the note of Grathe Wollison, dated January 1, 1923, represented money loaned by Frieda Serrien; that the note of W. E. Panser, dated December 4, 1922, represented money loaned by Bertha Serrien, and that the note of F. W. Huhl, dated January 5, 1923, represented money loaned by Emma Serrien. These children had accumulated money from payments made as interest and on the principal of their first gifts. These amounts were reinvested in these four notes. These notes were not a part of decedent’s estate.

The land given to William Serrien Aas situated in Lincoln County, Kansas. The grantor, Hildebrandt, lived in that county. Decedent was at the time of the transaction at his home in Wichita Falls, Tex. The deed from Hildebrandt to William Serrien was executed and delivered on October 28, 1922. Decedent executed and forwarded his check for the purchase money on October 21, 1922, or the day after he consulted Dr. Kiel and two days before he became aware of the seriousness of his physical condition. It is shown that William had requested his father to give him a farm just as he had given a farm to his son Ludwig, and that after it had been discovered that Hildebrandt was willing to sell his place there had been chaffering about the price. It thus appears that decedent had reached a determination to give a farm to William before he had seen Dr. Kiel and that the gift was the result of plans laid before he knew he was suffering from a malignant disease. Up to the time he consulted Dr. Kiel he had been leading an active business life. He came and went as he had always done. While he was suffering pain he had no conception that it arose from anything other than a disordered stomach. Although he had at first felt inconvenienced and subsequently suffered pain, his weight on October 20, 1922, was only seven pounds under his best weight. He had bought and applied a salve and consulted a country physician, the first he had consulted in 27 years. He went to Dr. Kiel only after he had been so advised by an old friend who appears to have realized far more than the decedent his need of a thorough examination. Under these circumstances, it can not be held that on October 21, 1922, the date on which the check was sent, decedent thought he was suffering from a malady which would shorten his life. Besides, this purpose had matured prior to that date. The testimony discloses that the first time this man was brought to a realization of his condition was on October 23, 1922. We are of opinion that respondent erred in including in the gross estate of decedent the farm given to William Serrien.

With respect to remaining gifts made after October 23, 1922, petitioner stoutly contends that they were made in continuation of a policy which had been inaugurated long before and that decedent was actuated only by the same motives which impelled him to make the gifts which he had made when he felt himself to be a perfectly well man. Petitioner relies on Spreckels v. State, supra, where it was said “It is only when contemplation of death is the motive without which the conveyance would not be made that a transfer may be subjected to the tax.” It is contended that the same motive was behind both the earlier and later transfers. We can not agree that petitioner has established this contention. The law presumes that these transfers were made in contemplation of death. Petitioner has not overcome this presumption. We do not know what decedent thought or what was his actuating motive. He was a reticent man. Our attention is invited to the fact that decedent’s wife suggested the gift of the $20,000 note to Linda. This gift was made less than two months before his death and when he knew not only that his days were numbered but that the end was very near. Besides, the purpose of the gift was to equalize Linda with the other children and thus was of a testamentary nature. It would require exceptionally strong testimony to establish that a person who knew that his death was only a matter of months made gifts without taking that fact into serious consideration. There is no such testimony in the record. We are of opinion, therefore, that with the exception of the farm which was given to William, respondent did not err in including in the gross estate of decedent all the remaining gifts made after October 23, 1922.

Judgment will 7>e entered after 15 days' notice, under Rule 50.

Considered by MaRquette, Phillips, and Van Fossan.