SIBLEY, Circuit Judge.
The suit in the District Court was for the recovery of a gift tax unlawfully exacted by the Collector. The court gave judgment for the plaintiff June 24, 1943. On Sept. 17, 1943, a notice was filed entitled in the cause and headed “Notice of Appeal”, which reads: “Comes now John L. Fahs, United States Collector of Internal Revenue for the District of Florida, defendant in the above entitled case, and gives notice of an appeal from the findings and judgment entered and filed therein on June 24, 1943, to the United States Circuit Court of Appeals of the Fifth Circuit”. Appellee moves to dismiss the appeal because not perfected in the manner prescribed by law. The argument is that the notice is not an appeal, but a notice of an intended appeal, and insufficient to give the appellate court jurisdiction, citing Benitez v. Bank of Nova Scotia, 1 Cir., 109 F.2d 743; United States v. New National Coal & Mining Co., 7 Cir., 72 F.2d 168; and Ex parte Hollon Parker, 120 U.S. 737, 7 S.Ct. 767, 30 L.Ed. 818, besides some decisions from State courts. It is true the notice here is not in the precise language of Form 27 under Rule of Civil Procedure 73(b), 28 U.S.C.A. following section 723c: “Notice is hereby given that C. D. and E. F., defendants above named, hereby appeal to the Circuit Court of Appeals,” etc. But the Forms are not mandatory. They are, as stated in Rule 84, “intended to indicate, subject to the provisions of these rules, the simplicity and brevity of statement which the rules contemplate.” The requirement of Rule 73(b) is: “The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from; and shall name the court to which the appeal is taken.” This notice does precisely that. [653]*653No one could fairly doubt that it gave notice of an appeal then taken rather than that one was intended to be thereafter taken. No one of the cases cited is a construction of the Rules of Civil Procedure. The reasoning of Ex parte Hollon Parker supports the sufficiency of this notice. We hold it to be sufficient and deny the motion to dismiss.
The tax in dispute was assessed in respect of the transfer of $300,000 on May 29, 1939, by plaintiff-appellee Charles E. Merrill to himself as trustee for his wife and her mother. The transfer was disclosed in a gift tax return by Merrill, but under the claim that it was not taxable as a gift, but was for adequate and full consideration in money or money’s worth, to-wit the release by the wife of her dower and all property rights in his estate. A tax was nevertheless assessed and collected, and refund being denied, this suit was brought against the Collector.
The deed of trust recites that on March 7, 1939, Merrill and his wife had made an antenuptial agreement providing for the trust, and “pursuant thereto and in consideration thereof” the transfer of the $300,000 is made. The facts found support that recital. The transfer was a part of the antenuptial agreement. Merrill, fifty-three years old, already having been twice married and having three children and some grandchildren, and property amounting in value to over $5,300,000, was about to marry Miss Kinta Desmare. To forestall possible family disputes and simplify his business and facilitate his provisions for his children and grandchildren and for his bride, and antenuptial agreement was made in good faith and in due form on the day before the wedding. Each party was represented by legal counsel. The agreement recites as its main purpose the making of a reasonable provision “in full settlement and satisfaction and in substitution and lieu of any and all rights which upon consummation of said marriage, second party would otherwise have and become entitled to as wife, widow or otherwise, in the property which the first party now has, or may hereafter own, or in his estate upon his death”. Mention is also made of the possibility of heavy losses in his business, which was investment banking and stock market operations. Therefore, “in consideration of the premises, and of the solemnization of the aforesaid marriage”, Kinta Desmare remises and releases, conveys and quitclaims to Merrill all right and title she may acquire as wife and widow in his lands then owned or thereafter acquired, and all right or interest she may thus acquire in all personal property. Merrill agrees within ninety days to make an irrevocable trust of $300,000 to uses desired by Miss Desmare and by will, if his wife survives, an additional trust of $300,000 to like uses; and still further $300,000 for the benefit of any living child or children born of their marriage. These provisions were stipulated not to deprive her or her children of proper support and maintenance in addition. The first described trust is the one now in controversy. Miss Desmare had no property of consequence. Merrill had land in Florida worth $135,000. The remainder of his wealth was mainly in money, stocks, bonds and other securities. Both were domiciled in Florida in 1939, but Merrill had become a resident of New York when this suit was brought.
The taxing statute is Revenue Act of 1932, Sections 501, 502, 503, 47 Stat. 169, 26 U.S.C.A. Int.Rev.Acts, pages 580, 585. The tax is laid on transfers during the calendar year of property by gift, and applies whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible. “Where property is transferred for less than an adequate and full consideration in money or money’s worth”, then the excess of value is to be taxed as a gift. By the same Act, Section 804, 26 U.S.C.A. Int.Rev.Acts, page 642, the estate tax law was so amended as to provide that a relinquishment or promised relinquishment of dower, curtesy or a statutory estate in lieu thereof, or of other marital rights in the decedent’s property or estate “shall not be considered to any extent a ‘consideration’ in money or money’s worth.” These words, if written into the gift tax law, would of course settle this controversy in favor of the tax. Though in the same Act, they were added by amendment to the estate tax law only. They were thought significant, if not controlling, touching a gift tax in Commissioner v. Bristol, 1 Cir., 121 F.2d 129, but we prefer to rest our decision on the words of the gift tax sections alone. Our question is, then, What if any consideration in money or money’s worth did the transferror, Merrill, receive in this transaction ?
[654]*654It will be noted that the agreement of March 7, 1939, which is the recited and actual consideration for the transfer, and which alone purports to relinquish anything on the part of Miss Desmare, was made before she was married, when she had no dower or other right whatever in Merrill’s property. It is not a case in which one already a wife sells or relinquishes for a consideration the rights which the law has given her, whether she relinquishes them to her husband or to another. We may well concede that in such a case she gives a money value for what she gets. Such is Lasker v. Commissioner, 7 Cir., 138 F.2d 989.
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SIBLEY, Circuit Judge.
The suit in the District Court was for the recovery of a gift tax unlawfully exacted by the Collector. The court gave judgment for the plaintiff June 24, 1943. On Sept. 17, 1943, a notice was filed entitled in the cause and headed “Notice of Appeal”, which reads: “Comes now John L. Fahs, United States Collector of Internal Revenue for the District of Florida, defendant in the above entitled case, and gives notice of an appeal from the findings and judgment entered and filed therein on June 24, 1943, to the United States Circuit Court of Appeals of the Fifth Circuit”. Appellee moves to dismiss the appeal because not perfected in the manner prescribed by law. The argument is that the notice is not an appeal, but a notice of an intended appeal, and insufficient to give the appellate court jurisdiction, citing Benitez v. Bank of Nova Scotia, 1 Cir., 109 F.2d 743; United States v. New National Coal & Mining Co., 7 Cir., 72 F.2d 168; and Ex parte Hollon Parker, 120 U.S. 737, 7 S.Ct. 767, 30 L.Ed. 818, besides some decisions from State courts. It is true the notice here is not in the precise language of Form 27 under Rule of Civil Procedure 73(b), 28 U.S.C.A. following section 723c: “Notice is hereby given that C. D. and E. F., defendants above named, hereby appeal to the Circuit Court of Appeals,” etc. But the Forms are not mandatory. They are, as stated in Rule 84, “intended to indicate, subject to the provisions of these rules, the simplicity and brevity of statement which the rules contemplate.” The requirement of Rule 73(b) is: “The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from; and shall name the court to which the appeal is taken.” This notice does precisely that. [653]*653No one could fairly doubt that it gave notice of an appeal then taken rather than that one was intended to be thereafter taken. No one of the cases cited is a construction of the Rules of Civil Procedure. The reasoning of Ex parte Hollon Parker supports the sufficiency of this notice. We hold it to be sufficient and deny the motion to dismiss.
The tax in dispute was assessed in respect of the transfer of $300,000 on May 29, 1939, by plaintiff-appellee Charles E. Merrill to himself as trustee for his wife and her mother. The transfer was disclosed in a gift tax return by Merrill, but under the claim that it was not taxable as a gift, but was for adequate and full consideration in money or money’s worth, to-wit the release by the wife of her dower and all property rights in his estate. A tax was nevertheless assessed and collected, and refund being denied, this suit was brought against the Collector.
The deed of trust recites that on March 7, 1939, Merrill and his wife had made an antenuptial agreement providing for the trust, and “pursuant thereto and in consideration thereof” the transfer of the $300,000 is made. The facts found support that recital. The transfer was a part of the antenuptial agreement. Merrill, fifty-three years old, already having been twice married and having three children and some grandchildren, and property amounting in value to over $5,300,000, was about to marry Miss Kinta Desmare. To forestall possible family disputes and simplify his business and facilitate his provisions for his children and grandchildren and for his bride, and antenuptial agreement was made in good faith and in due form on the day before the wedding. Each party was represented by legal counsel. The agreement recites as its main purpose the making of a reasonable provision “in full settlement and satisfaction and in substitution and lieu of any and all rights which upon consummation of said marriage, second party would otherwise have and become entitled to as wife, widow or otherwise, in the property which the first party now has, or may hereafter own, or in his estate upon his death”. Mention is also made of the possibility of heavy losses in his business, which was investment banking and stock market operations. Therefore, “in consideration of the premises, and of the solemnization of the aforesaid marriage”, Kinta Desmare remises and releases, conveys and quitclaims to Merrill all right and title she may acquire as wife and widow in his lands then owned or thereafter acquired, and all right or interest she may thus acquire in all personal property. Merrill agrees within ninety days to make an irrevocable trust of $300,000 to uses desired by Miss Desmare and by will, if his wife survives, an additional trust of $300,000 to like uses; and still further $300,000 for the benefit of any living child or children born of their marriage. These provisions were stipulated not to deprive her or her children of proper support and maintenance in addition. The first described trust is the one now in controversy. Miss Desmare had no property of consequence. Merrill had land in Florida worth $135,000. The remainder of his wealth was mainly in money, stocks, bonds and other securities. Both were domiciled in Florida in 1939, but Merrill had become a resident of New York when this suit was brought.
The taxing statute is Revenue Act of 1932, Sections 501, 502, 503, 47 Stat. 169, 26 U.S.C.A. Int.Rev.Acts, pages 580, 585. The tax is laid on transfers during the calendar year of property by gift, and applies whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible. “Where property is transferred for less than an adequate and full consideration in money or money’s worth”, then the excess of value is to be taxed as a gift. By the same Act, Section 804, 26 U.S.C.A. Int.Rev.Acts, page 642, the estate tax law was so amended as to provide that a relinquishment or promised relinquishment of dower, curtesy or a statutory estate in lieu thereof, or of other marital rights in the decedent’s property or estate “shall not be considered to any extent a ‘consideration’ in money or money’s worth.” These words, if written into the gift tax law, would of course settle this controversy in favor of the tax. Though in the same Act, they were added by amendment to the estate tax law only. They were thought significant, if not controlling, touching a gift tax in Commissioner v. Bristol, 1 Cir., 121 F.2d 129, but we prefer to rest our decision on the words of the gift tax sections alone. Our question is, then, What if any consideration in money or money’s worth did the transferror, Merrill, receive in this transaction ?
[654]*654It will be noted that the agreement of March 7, 1939, which is the recited and actual consideration for the transfer, and which alone purports to relinquish anything on the part of Miss Desmare, was made before she was married, when she had no dower or other right whatever in Merrill’s property. It is not a case in which one already a wife sells or relinquishes for a consideration the rights which the law has given her, whether she relinquishes them to her husband or to another. We may well concede that in such a case she gives a money value for what she gets. Such is Lasker v. Commissioner, 7 Cir., 138 F.2d 989. This case is one in which a woman offers herself in marriage, and herself alone, for she had no property and the Florida law retains for her all she may after marriage earn or acquire. That law would give her, after marriage, if she survives him, the right to elect dower in her husband’s lands and in his personal estate owned at his death; but instead of these uncertain an'd contingent rights, the parties here agree that these rights shall not come into existence, but another more definite pr.ovision shall be made for her. For this substituted provision she pays just what she would have paid for the provision made by law—herself in marriage. Merrill receives that and nothing else. It is what moves him to make a provision for her. When the transaction is consummated he has a wife and $300,000 less money. She has the $300,000 (with more to follow) and has given herself. Marriage is of course a valuable consideration, so recognized by the law. Antenuptial agreements like this are lawful and valid as against everyone, so far as consideration is concerned. But the acquisition of a wife is not a consideration in money or money’s worth, and it would be a degradation of the wife to attempt so to value her. The applicable Regulations 79, Art. 8, correctly declare: “A consideration not reducible to a money value, as love and affection, promise of marriage, etc., is to be wholly disregarded and the entire value of the property transferred constitutes the amount of the gift”. Merrill received no consideration in money or money’s worth.
But if we are wrong in thinking the marriage was the only consideration Merrill received, and if by some hocus pocus of law we ought to regard an interest in Merrill’s own property which Miss Desmare did not in fact own to be the consideration for what he did for her, the burden of showing the money value of that interest rests upon Merrill; for this is not a transaction at arm’s length in the ordinary course of business as to which an adequate consideration will be presumed; Robinette v. Helvering, Commissioner, 318 U.S. 184, 63 S.Ct. 540, 87 L.Ed. 700. That burden has not been and cannot well be borne. But for the antenuptial agreement the wife would on March 8 have had as inchoate dower one-third interest in fee simple after Merrill’s death in the lands he owned at marriage or might acquire during the marriage in Florida, provided she elected in writing within a limited time to apply for it. Comp.Gen.Laws Supp. §§ 5507(1), 5507(2), F.S.A. §§ 731.34, 731.35. Merrill then owned $135,000 worth of land, his age was known, she was much younger and would probably survive him, so that the present value in money of her dower right in that land could be actuarily computed and would constitute money’s worth, but it would not exceed $30,000. There is-no evidence whatever that he intended to buy any more land, and therefore no basis for a computation as to any other. The Florida statute above cited would also give her a dower of one-third of the personal property, but only that owned at his death, and to not more than a child’s part if there are children other than by her. Merrill’s expectancy of life was 18 or 19 years, and no actuary could foretell what personal property he would have at the end of that time, if any. His present personal wealth he might lose in his business or otherwise. As against the dower right he might give it away to his children, or freely dispose of it to suit himself in his lifetime. Smith v. Hines, 10 Fla. 258. It is hard to see where Merrill received any consideration on this item, since he could use and dispose of his personal property, except by will, without his wife’s approval or consent. -But her right in personal property, such as it was, was also subject to change by the legislature, and it so happens that the law was altered on April 21, 1939, while this transfer was in the making, so that the dower right was made subject to the husband’s debts at death and to estate taxes. Laws of 1939, p. 16, Chap. 18999, F.S.A. § 731.34. Again no actuary could estimate what Merrill’s debts might be eighteen years hence. And yet further, the peculiar [655]*655dower in personal property in Florida would be lost on Merrill’s removal to a State which had no such law, for the law of the decedent’s domicile governs the descent and distribution of movables. 15 C.J.S., Conflict of Laws, § 18, p. 935. Merrill has already changed his domicile to New York. We see no way to arrive at the money value in 1939 of her prospective dower in personalty under the Florida law, except by the wildest guess.
We repeat our conviction that the true view of this transaction is that in -consideration of marriage Merrill made, wisely and rightly, a certain and present provision for his wife in substitution for the uncertain and contingent one given her after his death, at her election, by law. The latter would have been taxable. So is that which was substituted for it.
The judgment is reversed and the cause remanded with direction to enter one in favor of the defendant.
Judgment reversed.