SPIEGEL'S ESTATE V. COMMISSIONER OF INTERNAL REVENUE(1949)
Rehearing Denied Feb. 14, 1949.
See 336 U.S. 915 . [ Spiegel's Estate v. Commissioner of Internal Revenue 335 U.S. 701 (1949) ] [335 U.S. 701 , 702]
Mr. Herbert A. Friedlich, of Chicago, Ill., for petitioner.
Mr. Arnold Raum, of Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
This is a federal estate tax controversy. Here, as in Commissioner v. Church, 335 U.S. 632 , we granted certiorari to consider questions dependent upon the meaning and application of a provision of 811(c) of the Internal Revenue Code. 47 Stat. 169, 279, 26 U.S.C. 811(c), 26 U.S.C.A. 811(c). The particular provision requires including in a decedent's gross estate the value at his death of all property 'To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise * * * intended to take effect in possession or enjoyment at or after his death * * *.'
In 1920 Sidney M. Spiegel, a resident of Illinois, made a transfer by trust of certain stocks to himself and another. He died in 1940. During his life the trust income was to be divided among his three children; if they did not survive him, to any of their surviving children. On his death the trust provided that the corpus was to be distributed in the same manner. But no provision was made for distribution of the corpus and its accumulated income should Mr. Spiegel survive all of his children and grandchildren. For this reason the Government has contended that under controlling state law the property would have reverted to Mr. Spiegel had he surv ved his designated beneficiaries.
The value of the corpus of this trust was not included in the Spiegel estate tax return. The Commissioner concluded that its value with accumulated income, about $1,140,000 should have been included in the gross estate under 811(c). The Tax Court held otherwise in an unreported opinion. The Court of Appeals for the Seventh Circuit reversed. 159 F.2d 257. It held that the possession or enjoyment provision of 811(c) required inclusion of the value of the trust property and accumulated income under the rule declared in Helvering v. Hallock, 309 U.S. 106 , 60 S. Ct. 444, 125 A.L.R. 1368, because under state law the trust [335 U.S. 701 , 704] agreement left the way open for the property to revert to Mr. Spiegel in case he outlived all the beneficiaries. This holding rested on the agreement of parties that whether there was a right of reverter depended on Illinois law, and the court's conclusion that under Illinois law a right of reverter did exist. 1
The Hallock case on which the Court of Appeals relied held that the value of trust properties should have been included in a settlor's gross estate under the 'possession or enjoyment' provision where trust agreements had expressly provided that the corpus should revert to the settlor in the event he outlived the beneficiaries. The taxpayer has contended here, as in the Tax Court and the Court of Appeals, that the Hallock rule is not applicable to this trust, where the settlor's chance to get back his property depended on state law and not on an express reservation by the settlor. This contention of the taxpayer rests in part on the argument that 811(c) imposes a tax only where it can be shown that the settlor's intent was to reserve for himself a contingent reversionary interest in the property. Another contention is that the value of this contingent reversionary interest was so small in comparison with the total value of the corpus that the Hallock rule should not be applied. A third contention is that the Court of Appeals holding was erroneous in that under Illinois law the corpus of this trust would not have reverted to the settlor had all the beneficiaries died while the settlor was still living. Petitioners urge that in that event the Illinois courts would have held that the corpus passed to the heirs of the last surviving beneficiary. [335 U.S. 701 , 705] We hold that the Hallock rule was rightly applied by the Court of Appeals and we accept its holding as to the applicable Illinois law.
First. In Commissioner v. Church, 335 U.S. 632 , we have discussed the Hallock holding in relation to the scope of the 'possession or enjoyment' provision of 811(c) and need not elaborate what we said there. What we said demonstrates that the taxability of a trust corpus under this provision of 811(c) does not hinge on a settlor's motives, but depends on the nature and operative effect of the trust transfer. In the Church case we stated that a trust transaction cannot be held to alienate all of a settlor's 'possession or enjoyment' under 811(c) unless it effects 'a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property. After such a transfer has been made, the settlor must be left with no present legal title in the property, no possible reversionary interest in that title, and no right to possess or to enjoy the property then or thereafter. In other words such a transfer must be immediate and out and out, and must be unaffected by whether the grantor lives or dies.' We add to t at statement, if it can be conceived of as an addition, that it is immaterial whether such a present or future interest, absolute or contingent, remains in the grantor because he deliberately reserves it or because, without considering the consequences, he conveys away less than all of his property ownership and attributes, present or prospective. In either event the settlor has not parted with all of his presently existing or future contingent interests in the property transferred. He has therefore not made that 'complete' kind of trust transfer that 811(c) commands as a prerequisite to a showing that he has certainly and irrevocably parted with his 'possession or enjoyment.' Any requirement [335 U.S. 701 , 706] less than that which we have outlined, such as a post-death attempt to probe the settlor's thoughts in regard to the transfer, would partially impair the effectiveness of the 'possession or enjoyment' provision as an instrument to frustrate estate tax evasions. To this extent it would defeat the precise purpose for which the provision was originated and which prompted Congress to include it in 811(c).
Determination of such issues as ownership, possession, enjoyment, whether transfers have been made and the reach of those transfers, may involve many questions of fact. And we have held in many cases that to the extent the determination of such issues depends upon fact finding, many different facts may be relevant. These fact issues in federal tax cases are for the Tax Court to decide in cases brought before it.
In this case the Tax Court made findings of fact and then decided against the Government. It did so, however, by holding as a matter of law that those facts did not require inclusion of the value of this corpus in the settlor's estate. 2 But the Tax Court's findings of fact showed that the trust contained no provision for disposition of the corpus should the settlor outlive the beneficiaries. This finding of fact, which we accept, plus the Court of Appeals determination of controlling Illinois law, [335 U.S. 701 , 707] without more, brings this trust transaction within the scope of the possession or enjoyment provision of 811(c) as we have interpreted that section in the Hallock and Church cases. And petitioner has not contended that it was denied an opportunity to present any relevant evidence concerning ownership, possession, or enjoyment. It is therefore not necessary to remand the case to the Tax Court for any further findings of facts. See Hormel v. Helvering, 312 U.S. 552 , 559, 560, 722, 723.
Second. It is contended that since the monetary value of the settlor's contingent reversionary interest is small in comparison with the total value of the corpus, the possession or enjoyment provision of 811( c) should not be applied. But inclusion of a trust corpus under that provision is not dependent upon the value of the reversionary interest. Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108, 112 , 510, 159 A.L.R. 227; Commissioner v. Estate of Field, 324 U.S. 113, 116 , 512, 159 A.L.R. 230; see Goldstone v. United States, 325 U.S. 687, 691 , 132 , 159 A.L.R. 1330. The question is not how much is the value of a reservation, but whether after a trust transfer, considered by Congress to be a potentially dangerous tax evasion transaction, some present or contingent right or interest in the property still remains in the settlor so that full and complete title, possession or enjoyment does not absolutely pass to the beneficiaries until at or after the settlor's death. See Smith v. Shaughnessy, 318 U.S. 176, 181 , 547.
Third. It is contended that under Illinois law the corpus of this trust would not have reverted to the settlor had he outlived the beneficiaries. The record reveals that the state law problem here is not an easy one, but under this Court's decision in Meredith v. Winter Haven, 320 U.S. 228 , the difficulty involved did not relieve the Court of Appeals of its duty to make a decision. The questioned ruling was made by three judges who are constantly required to pass upon Illinois law questions. One [335 U.S. 701 , 708] of the three judges has long been a resident and lawyer of Illinois. Examination of the Illinois state court opinions pressed upon us leaves us unable to say with any degree of certainty that the Court of Appeals holding was wrong. It is certainly neither novel nor unreasonable for state law to provide that when all trust beneficiaries die the trust corpus should revert to the donor. It would be wholly unprofitable for us to analyze Illinois cases on the point here urged. It is sufficient for us to say that we think reasonable arguments can be made based on Illinois cases to support a determination of this question either for or against the petitioner's contention. Under these circumstances we will follow our general policy and leave undisturbed this Court of Appeals holding on a question of state law. 3
All other arguments of the petitioners have been noted and we find them without merit.
Mr. Justice JACKSON dissents.
For concurring opinion of Mr. Justice REED, see 335 U.S. 632 .
For dissenting opinion of Mr. Justice FRANKFURTER, see 335 U.S. 632 .
Mr. Justice BURTON, dissenting.
Today's decision adds to the difficulties in this troubled field of estate tax law. It may, however, serve a good purpose if it leads to a sumultaneous consideration by [335 U.S. 701 , 709] Congress of the related fields of income, gift and estate taxation in connection with the creation or transfer of future interests.
At least five alternative proposals have been presented to us for the solution of this case. The first calls for the reversal of Reinecke v. Northern Trust Co., 278 U.S. 339, 66 A.L.R. 397, and a decision against the taxpayers. The second calls for the extension to this case of the doctrine of Helvering v. Clifford, 309 U.S. 331 , and a remand to determine further facts. The third, fourth and fifth follow existing precedents more closely. Each recognizes that, if no possibility of a reverter1 arose in favor of the settlor, by operation of law, under the trust instrument before us, the property thereby placed in trust is not required by 811(c) of the Internal Revenue Code to be included in the gross estate of the settlor for federal estate tax purposes. The third proposal finds that the law to be applied, for the above purpose, is that of Illinois. It calls for a decision in favor of the taxpayers because, under a correct application of that law, the required [335 U.S. 701 , 710] reverter could not arise. The fourth proposal claims or assumes that a possibility of a reverter did arise under this trust by operation of the law of Illinois in favor of the settlor. It, however, declines to apply the rule of de minimis non curat lex and, by declining to look urther, it reaches a decision against the taxpayers. This is the alternative which has been adopted in the opinion of the Court. The fifth proposal is like the fourth except that it does look further and it recognizes that 811(c) requires a finding of the settlor's actual intent in order to make that Section applicable. It then concludes that in the instant case the required intent is absent. The fifth proposal, therefore, calls for a decision in favor of the taxpayers or at least calls for a remand to determine the existence, if any, of the settlor's required intent. I believe that only the third and fifth proposals present a sound solution. Each of those two is founded upon existing precedents, reaches an equitable result and contributes to the cetainty rather than to the uncertainty of the application of the tax, pending legislative reconsideration of the entire subject. I prefer the fifth because it avoids complete dependence upon the law of a state. If the fifth proposal is not accepted, I believe that the present status of the law of Illinois requires acceptance of the third.
I. THE FIRST PROPOSAL IS THAT THE REINECKE CASE BE OVERRULED.
The lack of judicial support for overruling Reinecke v. Northern Trust Co., supra, at this late day, makes it unnecessary to consider this proposal at length. It has been, however, strongly urged upon us. The Spiegel trust instrument is so simple and complete in its terms2 that to apply the federal estate tax to its corpus merely on the strength of those terms would require a reversal [335 U.S. 701 , 711] of the Reinecke case. Accordingly, on the reargument of this case, we asked the following question: '1 Assuming that, under the applicable state law, there was no possibility of reverter and no interest of any other kind retained or arising in favor of the settlor or his estate under the transfer made in trust, inter vivos, did section 811(c) of the Internal Revenue Code require that the value of the corpus of the trust be included in the settlor's gross estate for federal estate-tax purposes? That is, did section 811(c) require the inclusion in the gross estate of the settlor of the value of the corpus of a trust, created inter vivos, merely because the settlor had provided in it that, upon his death, the trust should terminate and the corpus be distributed to designated beneficiaries then surviving?' Journal Supreme Court, Oct. Term, 1947, pp. 296-297.
In response, counsel for the Commissioner argued in the affirmative and counsel for the petitioners in the negative. The interpretation of the statute urged on behalf of the Commissioner, however, had been long ago rejected unanimously by this Court in passing upon the so-called 'five trusts' in the Reinecke case. Accordingly, if that precedent stands, the answer to the above question remains 'No' and that issue should be at rest.
The reasoning of the Reinecke case requires that, for a transfer to be taxable in a case like this, the settlor must have intended that the transfer come from the sett or and that it take effect in possession or enjoyment at or after the settlor's death. It must be from the dead to the living. That requirement calls for the existence of an interest, right or control in the settlor, or at least the existence of some possibility of a reverters to the settlor or to his estate, amounting to a string or tie to the trust property, in order to make 811(c) applicable. Such interest, string or tie must also be one that was [335 U.S. 701 , 712] transferred, cut off or obliterated by the terms of the trust at or after the death of the settlor.
Accordingly, there now should be said about 811 of the Internal Revenue Code, 53 Stat. 120, 26 U.S.C. (1940 Ed.), 811, 26 U.S.C.A. 811, what Mr. Justice Stone, in 1929, said in the Reinecke case about the corresponding 402 of the Revenue Act of 1921, c. 136, 42 Stat. 227, 278: 'In its plan and scope the tax is one imposed on transfers at death or made in contemplation of death and is measured by the value at death of the interest which is transferred. Cf. Y.M.C.A. v. Davis, 264 U.S. 47, 50 ; Edwards v. Slocum, 264 U.S. 61, 62 ; New York Trust Co. v. Eisner, 256 U.S. 345, 349 , 41 S. Ct. 506, 16 A.L.R. 660. It is not a gift tax and the tax on gifts once imposed by the Revenue Act of 1924, c. 234, 43 Stat. 313, has been repealed, 44 Stat. 126. One may freely give his property to another by absolute gift without subjecting himself or his estate to a tax, but we are asked to say that this statute means that he may not make a gift inter vivos, equally absolute and complete, without subjecting it to a tax if the gift takes the form of a life estate in one with remainder over to another at or after the donor's death. It would require plain and compelling language to justify so incongruous a result and we think it is wanting in the present statute.' Id., 278 U.S. at pages 347, 348, 49 S.Ct. at page 125, 66 A.L.R. 397.
See also, Helvering v. Hallock, 309 U.S. 106 , 125 A.L.R. 1368; dissenting opinion in Becker v. St. Louis Union Trust Co., 296 U.S. 48, 53 , 80, and Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 46 , 77, 100 A.L.R. 1239; Klein v. United States, 283 U.S. 231 ; and Shukert
v. Allen, 273 U.S. 545, 49 A.L.R. 855. II. THE SECOND PROPOSAL IS FOR THE APPLICATION OF THE DOCTRINE OF THE CLIFFORD CASE.
To apply the doctrine of Helvering v. Clifford, supra, to the case before us is, in effect, to substitute that doc- [335 U.S. 701 , 713] trine for the doctrine of the Reinecke case. Heretofore, this Court has made no application of the doctrine of the Clifford case to 811(c) or to any of its predecessor Sections. That doctrine has been reserved largely for income tax cases. All the facts appropriate for a decision in this case under the doctrine of the Clifford case have not been presented. The absence of those facts from the record and the absence of this issue from the arguments made below emphasize the inappropriateness of a remand to introduce such facts at this late point in this proceeding. Nothing suggests that this trustee has practiced fraud, or tax evasion, or has violated his obligations as a trustee. The trust became irrevocable at its inception. It thus contrasts sharply with any testamentary instrument which the settlor might have executed. There is nothing in it to suggest that the settlor, even as a sole surviving trustee, would be free from strict accountability to the beneficiaries of the trust or from an obligation to use his discretion in their interest rather than in his own. There is no more of an express provision in this trust for the possobility of a reverter to the settlor than there was in the Reinecke case. The countless uncertainties which would arise in other cases from a retroactive application to this statute of the doctrine of the Clifford case might be nearly as gr at as those which would flow from a reversal of the Reinecke case.
Furthermore, there is a sharp contrast between 22(a)3 and 811(c) of the Internal Revenue Code as a starting point for the application of the doctrine of the Clifford case. Section 22(a), upon which the Clifford [335 U.S. 701 , 714] case rests its expansion of the traditionally taxable income of the taxpayer, invites or at least permits the broad interpretation given to it. Section 811, on the other hand, contains no sweeping inclusions. Whatever breadth of language it contains is in 811(a), whereas 811(c) is in the nature of a special exception from the broad field of transfers inter vivos. Section 811(c) seeks to apply the estate tax to certain identifiable classifications of such transfers where experience has indicated that, in spite of their form, Congress believes they should be subjected to estate tax. The historical development of 811(c) bears out this interpretation. It has been extended only by the addition of specifically described classifications. The same is true of the revocable transfer described in 811(d), of joint and community interests in 811( e), of powers of appointment in 811(f), of proceeds of life insurance in 811(g), of transfers of prior interests in 811(h) and of transfers for insufficient consideration in 811(i). If Congress had intended to sweep into the gross estate of the decedent broad classifications of transfers inter vivos, contrary to the limitations upheld in Reinecke v. Northern Trust Co., supra, or as would result from the application of the doctrine of Helvering v. Clifford, many of the foregoing specific extensions would not have been necessary. The very specificity of the terms of 811(c) and of its related subsections emphatically negative any broad interpretation of their language. No language of a breadth comparable to that used in 22(a) appears anywhere in the Section.
To apply the doctrine of the Clifford case to the Spiegel trust because of the powers which the Spiegel trust vested [335 U.S. 701 , 715] in the settlor as a trustee conflicts with the position taken by this Court as to the 'five trusts' in the Reinecke case, supra. For example, the powers reserved directly to the settlor under Trust No. 4477 in the Reinecke case not only are equal to but, in some ways, are broader than those vested in the settlor, as a trustee, in the Spiegel trust. The very fact that in Trust No. 4477 the reservations were made directly to the settlor in his personal capacity, rather than to him as a trustee, removes from them the traditional limitations which equity places upon a trustee in the exercise of powers which he holds for the benefit of his cestui que trust. In Appendix II, infra, Trust No. 4477 is quoted in full from the record in the Reinecke case and a number of the especially material clauses have been italicized. While the terms of that trust were not quoted verbatim in the opinion of this Court in the Reinecke case, this Court there summarized several of them4 and said: 'Nor did the reserved powers of management of the trusts save to decedent any control over the economic benefits or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, but the transfer would not for that reason have been incomplete. The shifting of the economic nterest in the trust property which was the subject of the tax was thus [335 U.S. 701 , 716] complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax.' 278 U.S. at pages 346, 347, 49 S.Ct. at page 125, 66 A.L.R. 397.
This Court thus showed that all of the powers reserved directly to the settlor, even if coupled with the 'others' of the trustee, would not subject that trust to the estate tax. This is especially significant because the issue now presented had been brought squarely before this Court in the Reinecke case by the following question in the Government's brief:
The failure to remand this case for the determination of further facts which would be material under the tests of the Clifford case does not settle the question that has been argued as to the application of those tests under 811(c). It does, however, show that this Court has not been willing to rest its decision upon the application of the doctrine of the Clifford case on the basis of the terms of this trust and of the facts shown by the present record.
COMMON BASIS FOR THE THIRD, FOURTH AND FIFTH PROPOSALS.
The Material Facts.
The important facts in this case are the terms of the trust instrument and the intent of the settlor. The terms of the instrument are those to which the law of Illinois must be applied to determine whether there arose, by op- [335 U.S. 701 , 719] eration of law, any possibility of a reverter in favor of the settlor which might have been transferred, cut off or obliterated by the settlor's death. In 1920 the settlor made an irrevocable transfer, in Illinois, by trust, of certain corporate securities with directions to the trustees to pay the income of the trust, during the life of the settlor, to his three named children, but, if any of such children predeceased the settlor, the payments were to go to the children of such deceased child or children per stirpes. If there were no surviving child of a deceased child of the ettlor, the payments were to go to the other children of the settlor and to their descendants per stirpes. Similarly, upon the settlor's death, the trust fund and any accumulated income thereon were to be divided among the settlor's three children. It was provided, with obvious care, that, if any of the settlor's children had by that time died, leaving any child or children surviving, then the child or children of such deceased child of the settlor was or were to receive the share of the trust fund to which its or their parent would have been entitled. Furthermore, if any of the settlor's three children died without leaving any child or children surviving, then the share of such deceased child was to go to the settlor's remaining children, and to the descendants of any deceased child of the settlor per stirpes. No further express provision was made for the disposition of the income or of the corpus of the trust in the event, for example, that none of the settlor's three children and no descendants of such children survived the settlor. The instrument contained no further intimation of any intent or even thought on the part of the settlor that in any manner there might arise in favor of the settlor or of his estate, any beneficial interest, or right to, or control over the possession or enjoyment of the income or corpus of the trust.
The gift was not made in contemplation of death. At that date there was no law prescribing a federal gift [335 U.S. 701 , 720] tax applicable to it. The trustees named in the trust were the settlor himself and one other person whose relationship, if any, to the settlor does not appear in the record. Both were residents of Illinois. Their powers of management were comparable to those commonly granted to trustees to handle a trust estate consisting originally of such securities as were transferred here. The trust mentioned no power of appointment and no power to alter, amend, revoke or terminate the trust. At the creation of the trust, the age of the settlor was 47 and he was a widower. His three only children were, respectively, about 22, 15 and 12 years old. He then had no grandchildren. In 1940, when he died, he was 68 and his children were, respectively, 43, 36 and 33. He then had three grandchildren, aged, respectively, ten, four and two. Throughout his life the income of the trust was distributed to and for the benefit of his three children and upon his death the entire fund was distributed equally among them.
THE POSSIBILITY OF A REVERTER TO THE SETTLOR.
In addition to his broader claims discussed under the first and second proposals, the Commissioner has presented a narrow claim. This is a claim that if, by operation of law, there arises from the trust a reversionary interest in the settlor or in his estate, or if there exists even a gossamer thread of a possibility of a reverter to the settlor or to his estate, and if such interest, 'string or tie' were, by the terms of the trust, to be transferred, cut off or obliterated by his death, then, under existing precedents, the entire trust property should be included in the gross estate of the settlor for federal estate tax purposes. There is no issue made here as to the amount of the tax if any is due. The petitioners' claim is simply that no estate tax is applicable to the trust fund. [335 U.S. 701 , 721] III. THE THIRD PROPOSAL.
Illinois Law Precludes the Possibility of A Reverter.
On this branch of the case the first inquiry must be as to the law of Illinois and the second as to its application to this trust. A determination of the Illinois law and of its application adversely to the taxpayers would be conclusive against them, unless relieved by the rule of de minimis under the fourth proposal, or by a finding favorable to them on the issue of the settlor's factual intent under the fifth proposal. On the other hand, a finding favorable to the taxpayers upon either the principle or the application of the law of Illinois would dispose of this case in their favor. This very conclusiveness of t e state law under this proposal is a weighty consideration in favor of the interpretation of the statute presented by the fifth proposal. A federal policy of complete dependence upon state laws for the application of any nationwide tax cannot fairly be attributed to Congress without a much clearer expression of such a policy than appears in 811(c). The inherent difficulty of administration and the resulting inequality of taxation as between instruments governed by the laws of different states argue strongly against such a policy.
This Court, as a settled practice, places much reliance upon announcements by Courts of Appeals as to the law of the states within their respective Circuits. 7 The weight to which such announcements are entitled will vary with the circumstances under which they are made. In this case we have an announcement by the Court of Appeals for the Seventh Circuit on the law of Illinois as to the effect of contingent remainders contained in [335 U.S. 701 , 722] a trust and pointing out that, under the law of Illinois, they create reversionary interests in the settlor. Our difficulty here is not with the law as thus stated but with the application made of it to this case. The trouble is that the trust in this case contains not contingent remainders but vested remainders, and it is clear that, under the law of Illinois, no reversions, reversionary interests, resulting trusts or 'possibilities of a reverter' of any kind can arise by operation of law from a vested remainder. This is due to the essential difference between a contingent remainder and a vested remainder. If the law of Illinois is to control the situation, there is no escape from the determination of this clear-cut issue under the law of that State.
The failure of a condition precedent upon which a contingent remainder depends under a trust results naturally enough in a reversion of the undisposed-of beneficial interest to the settlor of the trust. On the other hand, the failure of a condition subsequent attached to a vested remainder under a trust results equally naturally only in a failure of the divestiture contemplated by the condition. The effect of such a failure of a condition subsequent attached to a vested remainder is not a reversion of an undisposed-of beneficial interest to the settlor of the trust. It merely relieves the holder of the vested remainder and his legatees and next of kin from the possibility of the divestiture to which the remainder originally had been subjected.
The Court of Appeals in the instant case has made no announcement of Illinois law contrary to that just stated. In fact, it made no announcement whatever on the subject of vested remainders because it treated the Spiegel remainders as contingent. 8 The foregoing ele- [335 U.S. 701 , 723] mental statement as to the legal effect of contingent remainders and of vested remainders subject to conditions subsequent conforms to the generally accepted law of trusts9 and to the law of Illinois. 10
This brings us near to the decisive question whether the remainder interests written into the Spiegel trust were contingent or vested. The Commissioner has suggested that it makes little substantial difference whether a condition is a condition precedent or a condition subsequent, as long as it is a condition. That is so for many purposes but where, as here, a tax, by hypothesis, can [335 U.S. 701 , 724] attach only if some possibility of a reverter can arise in favor of the settlor before his death, then it is inescapably necessary to determine whether or not, by operation of the law of Illinois, such a possibility of reverter can arise under this trust. To say in such a situation that the language of the conveyance makes no difference is to beg the question. The possibility is not expressly spelled out or denied. Its existence, like the existence of any other beneficial interest in the trust, must depend upon the effect given by Illinois law to the words of art in the conveyance. In the last analysis the problem is to determine whether or not the settlor intended by his language that the possession and enjoyment of his property were to return to him upon failure of the express dispositions of the beneficial interests in it. If the settlor had wished to express himself in detail he could have done so. Here, however, he used only the customary language of conveyancing and it remains to see what effect the Illinois law gives to that language.
In the helpful light of Lachenmyer v. Gehlbach, 266 Ill. 11, 107 N.E. 202, the remainders in the Spiegel trust are shown to be vested remainders, carrying conditions subsequent. See also, Stombaugh v. Morey, 388 Ill. 392, 58 N.E.2d 545, 157 A.L.R. 254; Murphy v. Westhoff, 836 Ill. 136, 53 N.E.2d 931; Danz v. Danz, 373 Ill. 482, 26 N.E.2d 872; Smith v. Shepard, 370 Ill. 491, 19 N.E.2d 368; Hoblit v. Howser, 338 Ill. 328, 170 N.E. 257, 71 A.L.R. 1046; Boye v. Boye, 300 Ill. 508, 133 N.E. 382; McBride v. Clemons, 294 Ill. 251, 128 N.E. 383; Hickox v. Klaholt, 291 Ill. 544, 126 N.E. 166; Welch v. Crowe, 278 Ill. 244, 115 N.E. 859. Cf. Freudenstein v. Braden, 397 Ill. 29, 72 N.E.2d 832. No distinction has been drawn in the Illinois cases between interests created by inter vivos deeds and like interests created by testamentary documents. See Smith v. Dugger, 310 Ill. 624, 625, 142 N.E. [335 U.S. 701 , 725] 243, 244, where the Illinois Supreme Court relied upon Lachenmyer v. Gehlbach, supra, in construing an inter vivos deed. See also, Harder v. Matthews, 309 Ill. 548, 141 N.E. 442.11 [335 U.S. 701 , 726] For these reasons, by operation of the law of Illinois, there here existed no possibility of a reverter to the settlor and, therefore, the federal estate tax cannot attach to it. To the extent that the Commissioner relies upon the law of Illinois to establish in this case the possibility of a reverter to the settlor, by operation of the Illinois law, he has been 'hoist with his own
petard.' IV. THE FOURTH PROPOSAL ASSUMES THAT A POSSIBILITY OF A REVERTER EXISTS AND THAT THE FACTUAL INTENT OF THE SETTLOR MAY BE DISREGARDED.
This proposal is reached only if the foregoing conclusions as to the law of Illinois are disregarded. It is the solution adopted in the opinion of the Court. If it is assumed that he possibility of reverter in favor of the settlor may be said to have arisen under the law of Illinois, [335 U.S. 701 , 727] then under existing precedents, if we look no further, the federal estate tax would be applicable here and a decision is called for against the taxpayers. The fifth proposal presents the view that the statute requires us to look further and to determine the issue in reliance upon the factual intent of the settlor. However, even without going that far, a substantial case can be made in favor of the taxpayers even under this fourth proposal. That case is based upon the extreme remoteness of the possibility of reverter which is relied upon by the Commissioner. The remoteness of it is obvious from the fact that, even at the time of the execution of the trust when the chances of its realization were at their highest point, the possible reverter to the settlor was conceivable only if all three of the children of the settlor were to die before he did and were to die without descendants of their own. Disregarding the possibility of descendants of his children, the record shows an actuarial computation of the likelihood that the settlor would survive all three of his children of only about 1 1/2 chances out of 100. On the basis of such a chance of realization, the computation gave a value of about $4,000 to a trust corpus of $1,000,000. To tax the settlor's estate more than $450,000, as is here proposed, because of the existence of this $4,000 worth of a possible reverter is not the kind of taxation that a court can readily imagine that Congress meant to impose. A proportion of 1 1/2 to 100 suggests the appropriate application here of the maximum of de minimis non curat lex. The difficulty of applying that test as the sole basis of exemption is, however, obvious. On the other hand, this element of remoteness provides a thoroughly reasonable consideration which may be combined with other evidence to determine the presence or absence of the factual intent on the part of the settlor which is discussed in the fifth and final proposal. [335 U.S. 701 , 728] V. THE FIFTH PROPOSAL.
The Statutory Intent of the Settlor Required to Make the Estate Tax applicableis Absent and a Contrary Intent is Present.
The undisputed evidence shows that, at the time of the transfer by trust, there was an absence of conscious intent on the part of the settlor that the trust property, or any part of it, should ever return to him or to his estate. In fact, there is strong evidence showing that he intended affirmatively to make a complete and irrevocable transfer which would exclude all possibility of a reverter to him. The trust recited as complete a transfer as any outright deed of gift would have recited if made directly to his children, except for the natural feature that, at their immature age, the transfer was made to trustees and these trustees were required by the irrevocable terms of the trust to deliver complete title to the settlor's children, or to their descendants, at a future date. The settlor's intent and the completeness of the transfer would have been no more complete if, instead of fixing the date for the future distribution of the trust property at the date of his own death, he had fixed it arbitrarily at December 19, 1940, which later proved to be the date of his death. The intent and completeness of the transfer, similarly, would have been no more complete if he had fixed the date of termination of the trust to coincide with the death of a third person instead of with his own death.
THE STATUTE REQUIRES A FINDING OF THE SETTLOR'S INTENT.
Section 811(c) requires us to find the settlor's intent as a condition of the application of that Section to this case. Accordingly, if the settlor had used language in his trust instrument which expressly, or even impliedly, had created or recognized a possible reverter in favor of the [335 U.S. 701 , 729] settlor, that language in itself would have been evidence that the settlor had intended the trust to include a reverter in his fav r and that he had intended the trust property, in the event of a realization of that reverter, to pass from him to his estate, under the 1920 trust, upon the expiration of that trust at his death.
It is, however, in the complete absence of such language in the trust instrument that the Government now claims that a possible reverter has arisen by operation of law. The existence of such a reverter, accordingly, may or may not have been intended in fact, and may not have been even thought about by the settlor. To say that the settlor must have intended all the legal consequences of his acts begs the question. So construed, the Section would have the same meaning as if the word 'intended' had been omitted.
Section 811(c) expressly covers transfers either 'in contemplation of or intended to take effect in possession or enjoyment at or after * * * death.' (Italics supplied.) We have held that the settlordecedent's motive must be determined before it can be held that a transfer was in contemplation of death. United States v. Wells, 283 U.S. 102 . That case included a transfer in trust, [335 U.S. 701 , 730] inter vivos, which was held not to have been made in 'contemplation of * * * death.' Similarly, factual intent should be found in order to determine whether a transfer was 'intended to take effect in possession or enjoyment at or after * * * death'. In United States v. Wells, Chief Justice Hughes, speaking for the Court, said 283 U.S. at pages 116, 117, 51 S.Ct. at page 451: 'The quality which brings the transfer within the statute is indicated by the context and manifest purpose. Transfers in contemplation of death are included within the same category, for the purpose of taxation, with transfers intended to take effect at or after the death of the transferor. The dominant purpose is to reach substitutes for testamentary dispositions and thus to prevent the evasion of the estate tax. * * * As the transfer may otherwise have all the indicia of a valid gift inter vivos, the differentiating factor must be found in the transferor's motive.'
In cases involving 'contemplation of * * * death' under 811(c) the required motive impelling a transfer 'is a question of fact in each case.' ( Italics supplied.) See Allen v. Trust Co. of Georgia, 326 U.S. 630, 636 , 392. So also, in each case under 811(c), the question whether 'the decedent has at any time made a transfer, by trust or otherwise, * * * intended to take effect in possession or enjoyment at or after his death, * * *' should be one of fact.
In determining the issue as to the settlor's intent in making his 1920 transfer, inter vivos, in the present case, the following considerations are material and persuasive:
1. Language of the trust instrument.-There was no language in this instrument which expressed or even affirmatively implied an intent to make a transfer to take effect in possession or enjoyment at or after the death of [335 U.S. 701 , 731] the settlor rather than in praesenti. If the trust instrument had contained such an express or affirmatively implied declaration of the settlor's intent, it might have been conclusive of the issue. If there had been even a description of, or reference to, a possible reverter to the settlor, that would have been strong evidence of the intent required by 811(c). The a sence of any such description or reference was consistent with a lack of intent that there be such a reverter. It was negative evidence to the effect that such a reverter was not intended and not desired by the settlor.
In an instrument of this kind it is natural for the settlor to give affirmative expression to each beneficial use to which he intends or desires the trust property to be put. It cannot be argued effectively in this case that the complete silence of the trust instrument on the subject of a possible reverter of the trust property to the settlor or to his estate amounted to an expression of intent by the settlor that such a reverter be permitted to arise by operation of law. As a matter of fact, the extrinsic evidence presented in this case tended to establish an opposite intent and desire.
In the present case, the overwhelming improbability of a complete failure of beneficiaries was so complete that it supplied a natural reason for omitting further provisions for distribution of the trust property. The likelihood that a 47-year-old settlor would outlive his three children and also his prospective grandchildren obviously was small. As it turned out, none of the settlor's three children predeceased him, and the distribution of the trust property was made to them without reaching his grandchildren. The facts of this case as they existed in 1920 presented to the settlor quite a different problem from that which would have been presented if, at that time, he had named as the only beneficiary of the trust a person with a life expectancy obviously shorter than his own. [335 U.S. 701 , 732] Standing alone, the instrument evidences a simple transfer in praesenti, comparable to that in Reinecke v. Northern Trust Co., supra. The language of the instrument, therefore, certainly did not, in itself, require the property which was transferred, in 1920, to be included, in 1940, in the setlor's gross estate for federal estate tax purposes. If anything, the language itself, read in the light of Illinois law as stated above in the discussion of the third proposal and as regarded by the settlor in the light of the advice of his legal counsel, is expressive of an intent that there be no possibility of a reverter, and of an intent to make an absolute and complete transfer to the trustees in praesenti.
2. Remoteness of the possible reverter.-The remoteness of the possible realization of a suggested reverter (whether arising from express provision of a trust or by operation of law) is an important factor in establishing the probable intent of the settlor of any trust to make, thereby, a transfer to take effect in possession or enjoyment at or after his death. If the 1920 trust instrument had named as its sole beneficiary a person having a comparatively short life expectancy, then, assuming a reversion in favor of the settlor under Illinois law, the possibility of its occurrence would have been substantial. It would have been so great that, if the settlor had expressly mentioned such a reversion in the trust instrument, that mention of it would have substantially demonstrated the existence of the intent required by 811(c). Even if the settlor had made no express mention of such a reversion and thus had left its effectiveness wholly to the operation of the law of Illinois, the circumstances themselves, including the high probability of the realization of the reversion, would have supplied important evidence upon which to base a finding of the required intent on the part of the settlor. However, with the inclusion [335 U.S. 701 , 733] of each additional youthful beneficiary of the trust, the basis for a conclusion that the settlor intended to establish a reversion to himself or to his estate and to postpone the transfer of the possession or enjoyment of the property until at or after his death was weakened.
The Tax Court, upon undisputed evidence, reduced to a mathematical basis the possibility presented by the suggested reverter in this case. The computations were stated to have been bas d upon a mortality table and an assumed rate of interest prescribed in Treasury Regulations as applicable to federal estate taxes. The computations also were stated to have been based upon assumed ages of a settlor and of beneficiaries corresponding substantially with those stated in the facts of this case. The computations showed that the probability that a person of the age of this settlor would survive three persons of the respective ages of the primary beneficiaries who were living at the date of the creation of this trust was only 0.01612, or about 1 1/2 chances out of 100. Similarly, the value of the right of a person, of the age of the settlor in 1920, to receive $1 on the death of the last of three persons of the ages of the primary beneficiaries was $0.00390.
In 1920, the most favorable computation would thus have placed a value of less than $4,000 upon the settlor's interest in the suggested reverter relating to a $1,000,000 trust fund. These computations do not take into consideration the additional possibility that many grandchildren might have been born in time to qualify as beneficiaries of this trust, and thus further reduce the possibility of reverter. In fact, three such grandchildren were born in time to qualify-thus reducing the value to the settlor, in 1940, of the suggested reverter, on a $1,000,000 trust fund, to about $70. The relation of $70 to $1,000,000 ordinarily would be de minimis and cer- [335 U.S. 701 , 734] tainly not one which would induce Congress to permit the assessment of a tax of over $450,000 because of its existence.
This demonstration of the remoteness of the possible reverter, if any, in this case is persuasive at least in showing the fact to have been that the settlor, in establishing this trust, probably intended it to be nothing other than a completed gift to those of his children or their descendants who might survive him.
In 1920 the gift, as such, was tax-free. Such a gift today would be subject to a gift tax. The assessment of a gift tax upon such a transaction emphasizes the impropriety, rather than the propriety, of also applying to it an estate tax at the death of the settlor. In 1920 the character of the gift was the same as it would be today and the fact that it was not subject to a gift tax then does not make it any more subject to the 1940 estate tax than if a gift tax had been paid upon it.
3. Direct evidence of the intent of the settlor.-Substantial evidence confirmed the absence of the factual intent necessary in order to make 811(c) applicable. There was no direct evidence indicating the existence of an actual intent on the part of the settlor to provide for a reverter to himself or to his estate or, in any other manner, to cause his 1920 transfer to trustees for the benefit of his descendants to take effect in possession or enjoyment at or after his death.
On the other hand, there was undisputed evidence indicating the absence of such an intent. In fact, it indicated the probable existence of a contrary intent. The Illinois attorney who drew the trust instrument testified that, prior to the drafting of the instrument, the settlor had stated that he desired and intended the trust property to be transferred to trustees for the benefit of his children and that he wanted at no time to retain any interest in it. The attorney added that, in drafting the trust, he had [335 U.S. 701 , 735] endeavored to carry out the instructions of his client and that he believed he had done so. That attorney is a member of the firm representing the estate of the settlordecedent in the instant case. As attorneys for the estate of the 1940 decedent, they argue that, under the law of Illinois, as they understood it and as they advised their client in 1920, there has not arisen any possibility of a reverter to the settlor under this trust by operation of law or otherwise. The receipt of that opinion by the settlor at the time of executing the trust instrument supports the petitioners' contention that the settlor then intended to translate into his Illinois trust his purpose to make an absolute and complete transfer of the subject matter of the trust, and thereby to make irrevocable provision for its future distribution.
In view of the uncontroverted and convincing evidence of the absence of any such factual intent on the part of the settlor as is required to bring his 1920 transfer within the terms of 811(c), and in view of the judgment of the Tax Court in favor of the settlor-decedent's executors, there is no need to remand the case to that court for a further finding in support of its judgment.
For the reasons stated in the foregoing discussion of the fifth proposal, and also for the reasons stated in the discussion of the third proposal to the effect that no possibility of a reverter arose in favor of the settlor by operation of the law of Illinois, I believe that the judgment of the United States Court of Appeals should have been reversed.
Appendixes to Mr. Justice BURTON'S dissent.
The trust instrument which is the subject of the decision in Spiegel v. Commissioner, ante, 335 U.S. 701 , is as follows:
The Northern Trust Company trust instrument No. 4477, which is one of the 'five trusts' considered in Reinecke v. Northern Trust Co., 278 U.S. 339, 66 A.L.R. 397, is as follows (italics supplied): 'This indenture, made this first day of March, in the year of our Lord one thousand nine hundred and nineteen (A.D. 1919), by and between Adolphus C. Bartlett, of the city of Chicago, county of Cook, and State of Illinois, the party of the first part, and [335 U.S. 701 , 738] the Northern Company (hereinafter termed the 'trustee'), of Chicago, a corporation organized and doing business under the laws of the State of Illinois, the party of the second part, witnesseth:
Maker: Amount Rollin S. Howard $5,000.00 W. S. Dorman 5,000.00 Edgar O. Faucett 22,500.00 Elisha T. Waters 5,000.00 Roy S. Goodrich 40,000.00 Wilson W. Dobson 7,000.00 Redwell Music Company 20,000.00 Pauline M. O'Neil 25,000.00 Pauline M. O'Neil 5,000.00
to be held and disposed of unde and in pursuance of this indenture.
[ Footnote 1 ] This Court of Appeals interpretation and application of 811(c) was in conflict with the holding of the Third Circuit in Commissioner of Internal Revenue v. Church's Estate, 161 F.2d 11. We granted certiorari in both cases, arguments have been heard together, and we have today reversed the Church case, 335 U.S. 632 .
[ Footnote 2 ] The Tax Court's conclusion of law that the 'possession or enjoyment' clause of 811(c) was inapplicable to the facts of this trust rested in part on its belief that Reinecke v. Northern Trust Co., 278 U.S. 339, 66 A.L.R. 397, had decided the issue. But the Hallock case was decided after Reinecke, and the question here involved was not specifically raised in the Reinecke case. Nor did the Court's opinion in that case, written by the late Chief Justice Stone, indicate that a transfer of bare legal title in a transfer must always be accepted as a conclusive showing that the possession and enjoyment provision of 811(c) cannot be applied to the trust corpus. Cf. Court's opinion in Harrison v. Schaffner, 312 U.S. 579 , written by Chief Justice Stone.
[ Footnote 3 ] Helvering v. Stuart, 317 U.S. 154 , 162Ä165, 144Ä146; cf. Steele v. General Mills, 329 U.S. 433 .
[ Footnote 1 ] The terms 'reverter' and 'the possibility of a reverter' have been used frequently and freely in opinions and discussions of this general subject. They are used here to refer to the return or possible return to the settlor or to his estate, under conditions comparable to those here suggested, of property previously placed in trust by the settlor. They are not used in any strict or technical sense peculiar to the law of property. See also, I Paul, Federal Estate and Gift Taxation 7.21, n. 1 (1942). They may refer, for example, to a reversionary interest, or a beneficial interest under a resulting trust, or merely some right to or control over a beneficial interest in the trust property and, in that sense, they include the 'string or tie' to the trust property that also has been referred to frequently in discussions of this subject. The term 'reversion' is used in its usual technical meaning in the law of property.
2. The Spiegel trust instrument is set forth in full in Appendix I, infra.
[ Footnote 3 ] 'Sec. 22. Gross income
[ Footnote 4 ] '* * * The settlor reserved to himself power to supervise the reinvestment of trust funds, to require the trustee to execute proxies, to his nominee, to vote any shares of stock held by the trustee, to control all leases executed by the trustee, and to appoint successor trustees. With respect to each of these five trusts a power was also reserved 'to alter, change or modify the trust,' which was to be exercised in the case of four of them by the settlor and the single beneficiary of each trust, acting jointly, and in the case of one of the trusts, by the settlor and a majority of the beneficiaries named, acting jointly.' 278 U.S. at page 344, 49 S.Ct. at page 124, 66 A.L.R. 397.
[ Footnote 5 ] Upon the reargument of the instant case and the Church case, we requested counsel to discuss particularly nine questions insofar as those questions were relevant to the respective cases. The first question has been quoted supra, 335 U.S. at page 711, 69 S.Ct. at page 305. The rest are quoted below and, of these, numbers 2, 6, 8 and 9 bore upon this alternative solution:
[ Footnote 6 ] A somewhat comparable but less direct conflict is presented by Goldstone v. United States, 325 U.S. 687 , 159 A.L.R. 1330. There substantially complete control over the disposition of the proceeds of insurance contracts was placed by the insured in the discretion of his wife, who also was the primary beneficiary. A minority of this Court sought to apply the doctrines of the Hallock case and the rationale which inheres in the Clifford case to the extent of recognizing the transaction as, in substance, a completed gift to the wife of the insured, and therefore not subject to the estate tax. This Court, however, did not, in that case, apply the Clifford doctrine to the estate tax. But see Richardson v. Commissioner, 2 Cir., 121 F.2d 1, certiorari denied 314 U.S. 684 , where it was held that, under the Clifford case, a trustee, with a broad power of revocation which might at any time be exercised for his own benefit, was himself liable for the income tax on the income of the trust. See also, Bunting v. Commissioner, 6 Cir., 164 F.2d 443, certiorari denied 333 U.S. 856 ; 47 Mich.L.Rev. 137 (1948).
[ Footnote 7 ] See Helvering v. Stuart, 317 U.S. 154 , 163, 164; , 145, 146; MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280 .
[ Footnote 8 ] 'Applying this law to the instant case, we think it follows that the interests under this trust did not vest upon the execution of the trust, as contended by the taxpayer, and could only vest upon the happening of the condition precedent, namely, that the beneficiaries or some of them survive the settlor, and this was the 'event which brought the larger estate into being for the' beneficiaries.' Commissioner v. Spiegel's Estate, 7 Cir., 159 F.2d 257, 259.
[ Footnote 9 ] 'Where property is given in trust for one beneficiary for life and to another beneficiary in remainder, and before the termination of the trust the latter beneficiary dies intestate and without heirs or next of kin, it would seem that his interest passes to the state, and that a resulting trust will not arise in favor of the settlor or his estate. In such a case, since the entire beneficial in erest, subject to the preceding life estate in the other beneficiary, vested in the beneficiary entitled in remainder absolutely at the time of the creation of the trust, it would seem that the trust does not fail on his death, so as to give rise to a resulting trust, but his interest passes to the state as ultimus haeres. On the other hand, if the beneficial gift over is contingent, and the contingency does not occur, a resulting trust will arise in favor of the settlor or his estate.' 3 Scott On Trusts, 411.5 (1939).
[ Footnote 10 ] The Illinois cases establish the rule that, when a vested estate in remainder has been created, the divestment of that estate in favor of some other beneficiary can take place only in literal compliance with the divesting conditions set forth by the settlor. Henderson v. Harness, 176 Ill. 302, 52 N.E. 68. See Illinois Land & Loan Co. v. Bonner, 75 Ill. 315; McFarland v. McFarland, 177 Ill. 208, 217, 52 N.E. 281, 284, and Continental Illinois Nat. Bank & Trust Co. v. Kane, 308 Ill.App. 110, 31 N. E.2d 351. See also, 42 Ill.L.Rev. 561, 564. This does not leave room for reversion to the settlor by operation of law.
[ Footnote 11 ] The basis of distinction necessarily rests with the form of the statement employed. A classic definition of the distinction between contingent and vested remainders is that in Gray, The Rule Against Perpetuities, 108, quoted as follows in Lachenmyer v. Gehlbach, 266 Ill. 11, 18, 19, 107 N.E. 202, 205: 'A test which is generally reg rded as sufficient to determine the question, and which has been generally adopted, is stated as follows: 'If the conditional element is incorporated into the description of or into the gift to the remainderman, then the remainder is contingent, but if, after words, giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, on a devise to A. for life, remainder to his children, but, if any child dies in the lifetime of A., his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A. for life, remainder to such of his children as survive him, the remainder is contingent.' The language in the Spiegel and the Lachenmyer trusts is closely comparable. In each case the gift to children of the settlor is a vested gift. In the Spiegel trust the children's interest was a vested primary interest (subject to conditions subsequent) and in the Lachenmyer trust the children's interest was a vested remainder following a life interest in favor of the testator's wife (and in turn subject to conditions subsequent). In both cases the language making the gifts over is in the form of a divestitureÄcomparable to that in the classic example quoted above 'but if any child dies in the lifetime of A his share to go to those who survive, * * *.' (Italics supplied.) The material provision of the Spiegel trust, italics supplied, is as follows:
[ Footnote 12 ] Webster's New International Dictionary, 2d Ed. (1938).