GRAY, Justice.
This appeal is from a judgment awarding appellee a recovery of inheritance taxes paid under protest. Art. 7057b, Vernon’s Ann.Civ.St.
Calvert Smith died testate on October 14, 1952. His will was filed for probate in Harris County and its probate was contested by Mrs. Mattie Smith, the surviving widow, and John Calvert Dickson, an adopted son. Thereafter an agreement of compromise and settlement was made whereby 2,000 shares of the common stock of Humble Oil and Refining Company were transferred to Mrs. Mattie Smith and the will was admitted to probate with Vivian Smith Roberts as independent executrix.
The estate of Calvert Smith, Deceased, included 31,350 shares of the common stock of Humble Oil and Refining Company which was inclusive of the 2,000 shares transferred to Mrs. Mattie Smith, supra.
In due time the executrix filed an inheritance tax inventory and report showing a total inheritance tax due in the amount of $127,241.19. Thereafter the Comptroller notified the executrix that an inheritance tax of $180,410.85 had been assessed and this sum was paid under protest.
The market value of the above 31,350 shares of stock for inheritance tax purposes on October 14, 1952 is the question to be decided.
The executrix filed this suit, alleged that the assessment of inheritance taxes made by the Comptroller was erroneous and excessive in the amount of $34,864.64 and prayed for recovery of such amount as may be determined should be refunded.
Vivian Smith Roberts died while this suit was pending, Myrtle Kattar duly qualified as independent executrix and was substituted,as plaintiff.
At a non jury trial a judgment was rendered finding the market value of the above stock to be $63 per share and awarding ap-pellee a recovery of $24,439.39 together with the pro rata interest earned. The judgment decreed that the 2,000 shares of stock transferred to Mrs. Mattie Smith should be taxed in the same manner as if said stock had. been given to her by the will.
Appellants here present three points. These are to the effect that the trial court erred in: (1) finding and concluding that in determining the actual market value of the 31,350 shares of stock the Comptroller should take into account the size of the block of stock owned and apply the “blockage” rule; (2) finding and concluding that the actual market value of the stock at the date of the death of Calvert Smith was $63 per share, and (3) in holding that the 2,000 shares of stock transferred to Mrs. Mattie Smith should be taxed in the same manner as if the stock had been given to the surviving wife by the will.
The “blockage” rule has been defined as “recognition of the fact that in some instances a large block of stock cannot be marketed and turned into cash as readily as a few shares.” Citizens Fidelity Bank & Trust Company v. Reeves, Ky., 259 S.W.2d 432, 433. In Phipps v. Commissioner of Internal Revenue, 10 Cir., 127 F.2d 214, 216, in its discussion of this rule the court said:
“The reasoning on which this theory of valuation is based is that a large block of stock cannot ordinarily be marketed and turned into cash as readily as a few shares; also, that where there is only a limited market for a stock, offering a large block of the stock depresses the market and lowers the price that can be obtained for the stock. The conclusion that flows from this premise is that evidence of sales of small blocks of stock is not a cri[320]*320terion of the value of a large block of ■ the same stock.
“The ultimate place of the ‘blockage’ theory in the field of valuation has not yet been finally determined. The most that the courts have said is that it is a factor to be considered along with all others in determining value in computing gift taxes under the statute.” Authorities cited.
Both cases supra recognize that the “blockage” rule is a factor that may be considered in determining the value of a block of stock for taxing purposes. Also see annotations in 23 A.L.R.2d at page 775 et seq.
The “unit” rule is a method of valuing stock by multiplying the total number of shares by the sale price of one share sold on a licensed stock exchange and ignoring all other facts regarding value. Citizens Fidelity Bank & Trust Company v. Reeves, supra.
Appellants contend that the “unit” rule should be here applied and appellee contends that the trial court was correct in applying the so-called “blockage” rule.
Appellants support their contention by showing that on October 14, 1952 (date of death) the closing price per share of Humble Oil & Refining Company stock on the auction market of the American Stock Exchange was $67 per share.
We have not been cited to any Texas case, and we have not found any, valuing a block of stock for inheritance tax purposes.
Art. 7130, Vernon’s Ann.Civ.St., provides for the appraisal of property for inheritance taxes. That statute in part provides that the property shall be appraised
“ * * * at its actual market value if it has a market value, and in case it has none, then its real value at the time of the death of the decedent, * *
It is not disputed that the stock had a market value on October 14, 1952, and the question is: Did, the trial court properly determine such value? All of the stock was subject to the tax and we think that in arriving at the market value of the 31,350 shares it is proper to resort to the accepted definition of market value. That definition as approved by the Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979, 980, is:
“ * * * the price the property will bring when offered for sale by one who desires to sell, but is not obligated to sell, and is bought by one who desires to buy but is under no necessity of buying.”
We are concerned with the market value of all the block of 31,350 shares of stock at the date of death of Calvert Smith, however, the parties appear to agree that a reasonable time after that date should be allowed in which to complete the sale in a diligent and prudent manner.
In Helvering v. Maytag, 8 Cir., 125 F.2d 55, 63, certiorari denied 316 U.S. 689, 62 S.Ct. 1280, 86 L.Ed. 1760, the court said:
“As well as any controverted question of administrative law may be settled without declaration by the Supreme Court, it is established that the size of a block of listed stock may be a factor to be considered in its valuation for gift or estate tax purposes. Where, as in this case, the taxpayer affirmatively shows that a block of listed stock to be valued is very great in comparison with the amounts of the stock which have been traded in on the exchange where it is listed, that the block of stock could not be sold on such market at its quoted prices within a reasonable time by skilled brokers following prudent practices for liquidation and that the true value of the block of stock is in fact different from the price quotations, then the taxpayer is entitled to have all other proper evidence of the value of the block of stock considered together with the market quotations.
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GRAY, Justice.
This appeal is from a judgment awarding appellee a recovery of inheritance taxes paid under protest. Art. 7057b, Vernon’s Ann.Civ.St.
Calvert Smith died testate on October 14, 1952. His will was filed for probate in Harris County and its probate was contested by Mrs. Mattie Smith, the surviving widow, and John Calvert Dickson, an adopted son. Thereafter an agreement of compromise and settlement was made whereby 2,000 shares of the common stock of Humble Oil and Refining Company were transferred to Mrs. Mattie Smith and the will was admitted to probate with Vivian Smith Roberts as independent executrix.
The estate of Calvert Smith, Deceased, included 31,350 shares of the common stock of Humble Oil and Refining Company which was inclusive of the 2,000 shares transferred to Mrs. Mattie Smith, supra.
In due time the executrix filed an inheritance tax inventory and report showing a total inheritance tax due in the amount of $127,241.19. Thereafter the Comptroller notified the executrix that an inheritance tax of $180,410.85 had been assessed and this sum was paid under protest.
The market value of the above 31,350 shares of stock for inheritance tax purposes on October 14, 1952 is the question to be decided.
The executrix filed this suit, alleged that the assessment of inheritance taxes made by the Comptroller was erroneous and excessive in the amount of $34,864.64 and prayed for recovery of such amount as may be determined should be refunded.
Vivian Smith Roberts died while this suit was pending, Myrtle Kattar duly qualified as independent executrix and was substituted,as plaintiff.
At a non jury trial a judgment was rendered finding the market value of the above stock to be $63 per share and awarding ap-pellee a recovery of $24,439.39 together with the pro rata interest earned. The judgment decreed that the 2,000 shares of stock transferred to Mrs. Mattie Smith should be taxed in the same manner as if said stock had. been given to her by the will.
Appellants here present three points. These are to the effect that the trial court erred in: (1) finding and concluding that in determining the actual market value of the 31,350 shares of stock the Comptroller should take into account the size of the block of stock owned and apply the “blockage” rule; (2) finding and concluding that the actual market value of the stock at the date of the death of Calvert Smith was $63 per share, and (3) in holding that the 2,000 shares of stock transferred to Mrs. Mattie Smith should be taxed in the same manner as if the stock had been given to the surviving wife by the will.
The “blockage” rule has been defined as “recognition of the fact that in some instances a large block of stock cannot be marketed and turned into cash as readily as a few shares.” Citizens Fidelity Bank & Trust Company v. Reeves, Ky., 259 S.W.2d 432, 433. In Phipps v. Commissioner of Internal Revenue, 10 Cir., 127 F.2d 214, 216, in its discussion of this rule the court said:
“The reasoning on which this theory of valuation is based is that a large block of stock cannot ordinarily be marketed and turned into cash as readily as a few shares; also, that where there is only a limited market for a stock, offering a large block of the stock depresses the market and lowers the price that can be obtained for the stock. The conclusion that flows from this premise is that evidence of sales of small blocks of stock is not a cri[320]*320terion of the value of a large block of ■ the same stock.
“The ultimate place of the ‘blockage’ theory in the field of valuation has not yet been finally determined. The most that the courts have said is that it is a factor to be considered along with all others in determining value in computing gift taxes under the statute.” Authorities cited.
Both cases supra recognize that the “blockage” rule is a factor that may be considered in determining the value of a block of stock for taxing purposes. Also see annotations in 23 A.L.R.2d at page 775 et seq.
The “unit” rule is a method of valuing stock by multiplying the total number of shares by the sale price of one share sold on a licensed stock exchange and ignoring all other facts regarding value. Citizens Fidelity Bank & Trust Company v. Reeves, supra.
Appellants contend that the “unit” rule should be here applied and appellee contends that the trial court was correct in applying the so-called “blockage” rule.
Appellants support their contention by showing that on October 14, 1952 (date of death) the closing price per share of Humble Oil & Refining Company stock on the auction market of the American Stock Exchange was $67 per share.
We have not been cited to any Texas case, and we have not found any, valuing a block of stock for inheritance tax purposes.
Art. 7130, Vernon’s Ann.Civ.St., provides for the appraisal of property for inheritance taxes. That statute in part provides that the property shall be appraised
“ * * * at its actual market value if it has a market value, and in case it has none, then its real value at the time of the death of the decedent, * *
It is not disputed that the stock had a market value on October 14, 1952, and the question is: Did, the trial court properly determine such value? All of the stock was subject to the tax and we think that in arriving at the market value of the 31,350 shares it is proper to resort to the accepted definition of market value. That definition as approved by the Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979, 980, is:
“ * * * the price the property will bring when offered for sale by one who desires to sell, but is not obligated to sell, and is bought by one who desires to buy but is under no necessity of buying.”
We are concerned with the market value of all the block of 31,350 shares of stock at the date of death of Calvert Smith, however, the parties appear to agree that a reasonable time after that date should be allowed in which to complete the sale in a diligent and prudent manner.
In Helvering v. Maytag, 8 Cir., 125 F.2d 55, 63, certiorari denied 316 U.S. 689, 62 S.Ct. 1280, 86 L.Ed. 1760, the court said:
“As well as any controverted question of administrative law may be settled without declaration by the Supreme Court, it is established that the size of a block of listed stock may be a factor to be considered in its valuation for gift or estate tax purposes. Where, as in this case, the taxpayer affirmatively shows that a block of listed stock to be valued is very great in comparison with the amounts of the stock which have been traded in on the exchange where it is listed, that the block of stock could not be sold on such market at its quoted prices within a reasonable time by skilled brokers following prudent practices for liquidation and that the true value of the block of stock is in fact different from the price quotations, then the taxpayer is entitled to have all other proper evidence of the value of the block of stock considered together with the market quotations. The arguments for the Commissioner to the con[321]*321trary have not persuaded us that the rulings of other Circuit Courts of Appeals and District Courts to the stated effect should be departed from.”
In Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, the method of valuing property for tax purposes in keeping with standard business practices was approved,
It is our opinion that in finding the market value of the 31,350 shares of stock the above definition of market value is to be applied and that the so-called “unit” and “blockage” rules become convenient terms for the application of the facts to the issue presented. That is, those rules are factors to be considered with all other facts and circumstances in evidence.
The evidence heard by the trial court shows, as noted supra, that the price of Humble stock at the close of the market on October 14, 1952, was $67 per share. However the witnesses agreed that the best price obtainable for the 31,350 shares could not have been realized by offering it all for sale at one time. They also agreed that if the 31,350 shares had been sold by an orderly feeding of it into the market over a period of one year from October 14, 1952, it could not have been sold for as much as $67 per share. The witnesses testified to facts which well qualified them to express opinions as to a prudent manner for the marketing of the stock and as to the price it would have brought on the market. One witness said that the stock could have been sold in the period of one year at an average of $63 per share. This same witness said if all the stock had been sold over a period of six months after October 14, 1952, it would have brought “about” $60 to $62 per share. Another witness said that by selling the stock by “the secondary distribution method” $65 per share could have been realized. He defined such system as :
“A secondary distribution is a distribution over the counter by a dealer or group of dealers of a comparatively large block of a previous-issued and outstanding security listed or admitted to trading on an exchange. Such distribution takes place when it has been determined that it would not be in the best interest of the various parties involved to sell the shares on the Exchange in the regular way or by special offering. The distribution generally takes place after the close of the Exchange trading. As in the case of special offerings, buyers obtain the security from the dealer at the net price of the offering, which usually is at or below the most recent price registered on the Exchange, * * *. Had this block of stock been sold via a secondary, the price at which it would have been sold to the dealer or dealers, if there were a group of them, would have been a negotiated price between the owners of the stock and the dealers concerned.”
Another witness testified that an orderly marketing of the stock within any reasonable time after October 14, 1952, could not have been accomplished except on the basis of a substantial decline in the price and expressed his opinion that such decline would have been an average of not less than $6 to $8 per share.
The evidence shows that during the time in question the market for Humble stock was what is termed as a “thin” market which was explained as a market not attractive to investors because of dividends paid. The stock was classed as high grade or quality stock attractive to long range investors who were not interested in immediate income.
The period of time from October 14, 1952, to October 14, 1953, showed a declining market for Humble’s stock and on October 14, 1953, when 1,700 shares were offered the closing price was $54 per share.
The finding by the trial court that the value of the stock was $63 per share is well within the values of said stock as testified to by the witnesses.
[322]*322In appellants’ brief they say that:
“ * ⅜ * the trial court clearly erred in holding that the blockage rule should be applied to reduce the stock exchange price on the valuation date because (1) there was no evidence of any necessity or probability of having to place any large block of the 31,350 shares on the market and (2) the undisputed evidence shows that no large block of said stock has ever been placed on the market.”
A similar argument was advanced in Helvering v. Maytag, supra, and was disposed of by the quotation from that case supra.
Appellants say that since September 1, 1934, it has been the consistent departmental construction to value shares of stock for inheritance tax purposes by applying the unit rule, that is, by multiplying the number of shares by the listed value of the shares on the stock exchange at the date of death. Such listing price is evidence of value and in controverted cases is to be considered with all other facts and circumstances in evidence. In the case before us the market value of the stock at the date of death of Calvert Smith was directly put in issue and it was determined that the listed value of the stock was not its market value. Under such circumstances we think the departmental construction is not controlling and that it must yield to the judicial determination of an issue of fact.
In Crane v. Mann, Tex.Civ.App., 162 S.W.2d 117, er. ref., a will and codicil devising all of the testator’s property to his sister was offered for probate, its probate was contested by testator’s son and a compromise judgment was entered admitting the will and codicil to probate and setting a part of testator’s property over to the son. Thereafter the Comptroller assessed the entire estate for inheritance taxes against the beneficiary named in the will. The assessment was upheld. The court said that regardless of the compromise agreement the will was probated and by its terms the property vested, that by the compromise the beneficiary agreed for the contestant to take a part of the property which the will gave to her and thereby purchased her peace and unquestioned title to the balance of the property.
The facts before the court in the case supra are similar to the facts here, the holding received the unqualified approval of the Supreme Court, it is controlling here and requires that appellants’ point 3 be sustained.
The judgment of the trial court insofar as it adjudged the market value of the 31,-350 shares of stock to be $63 per share with a refund of taxes accordingly is affirmed. Insofar as the judgment decreed that the 2,000 shares of stock transferred to Mrs. Mattie Smith should be taxed in the same manner as if the said stock had been given to her by the will is reversed, and judgment is here rendered that the 31,350 shares of stock shall be taxed as passing under the will.
Accordingly the judgment of the trial court is in part affirmed and in part reversed and rendered.
Affirmed in part and in part reversed and rendered.