Bradley v. Smith

KERNER, Circuit Judge

(dissenting).

I do not concur in the holding of the foregoing opinion. The ultimate fact to be determined is whether the transfer of the $100,000 was a transfer in contemplation of death within the meaning of Sec. 302(c) of the Revenue Act of 1926, as amended by Sec. 803(a) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 279. No direct proof that the transfer was not in contemplation of death was offered, and if shown at all it was by way of inference from certain circumstantial evidence.

The dominant aim of the statute is to reach substitutes for testamentary dispositions and a transfer is in contemplation of death if the impelling motive for the transfer leads to testamentary disposition. United States v. Wells, 283 U.S. 102, 51 S. Ct. 446, 75 L.Ed. 867.

If the transfer is of a material part of the decedent’s property without consideration and made within two years prior to his death, the statute provides it shall be deemed to have been made in contemplation of death. The burden of rebutting this presumption under the facts in our case was upon the plaintiff.

The decedent at the time of the transfer was eighty-five years of age. Within six months before the transfer he suffered two heart attacks, the latter attacks occurring within three months of the transfer, and a little more than a month later he had a third attack which definitely foreshadowed his death. When he gave the check to his daughter, he remarked that he was doing something he long had had in mind and then he handed her an agreement for her to sign, requiring that the money be invested in a certain manner with the income payable to the decedent and with the privilege of invading the principal.

It has been held that the burden is t not met if a motive is disclosed which is as consistent with a testamentary disposition of property as with a gift inter vivos; or if two motives are disclosed, either of which might have accounted for the transfer, the one testamentary and the other not. Farmers’ Loan & Trust Co. v. Bowers, 2 Cir., 68 F.2d 916, Id., 2 Cir., 98 F.2d 794.

My examination of the record impels me to the conclusion that there is no substantial evidence from which any life motive may be inferred; on the contrary, it is clear that the decedent was contemplating death and that he was making the gift as a substitute for a testamentary disposition.