L. HAND, Circuit Judge.
These appeals (petitions to review) are from two orders of the Tax Court, expunging deficiencies in estate taxes, assessed against executors of two decedent estates under the following circumstances. In Proctor’s case the testatrix on December 18th, 1923, had executed two deeds, by one of which she transferred securities to trustees to pay the income to herself for life, and at her death to divide the principal into two equal parts, the principal of one of which they were to pay over to her son “in absolute property”, and the income of the other they were to pay over to the son during his life, with remainders upon his death to her grandchildren then living, “per capita and not per stirpes.” If the son died before her, the trustees were to distribute the principal upon her death among her grandchildren then living per capita; if the son should die “during * * * the trust”, and if the grantor died without grandchildren, she limited a remainder to the “heirs at law or legal representatives” of her son and daughter. The other deed was the counterpart of that just described except that the grantor’s daughter replaced her son as beneficiary.
In the Washington Trust Company case the testator had executed two deeds of trust, one on December 11, 1923, and the other in September, 1929. By the first he [88]*88transferred securities to trustees to pay the income during his life to anyone whom he should designate”, any residue to accumulate; and upon hist death to pay so much of the income to his wife for life “as she may request”, and on her death, if she survived him, or on his death, if she did not, to pay the income to his children then living, with survivorship in case any child had died without issue: the share of any child who died leaving issue to pass to his issue. It is not necessary to set out in full the detailed provisions of the second deed; they present no variants from the first which are relevant to the question involved here. The1 Commissioner ruled— and a minority of the Tax Court agreed— that in the case of all four trusts, the principal should be included in the gross estate of the grantor at the time of his or her death, by virtue of that passage in § 302(c) of the Revenue Act of 1926, 26 U. S.C.A. Int.Rev.Acts, page 227, which before the amendment of 1931, read as follows: “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.” A majority of the Tax Court held, however, that May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, which they described as “solidly grounded on Reinecke v. Northern Trust Company, 278 U.S. 339 [49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397],” forbade this result and they therefore expunged the deficiencies. The minority observed that there was a difference between May v. Heiner, supra, and Reinecke v. Northern Trust Company, supra, in that the life interest in the May v. Heiner, supra, had been limited to the settlor, while in the Reinecke v. Northern Trust Company, supra, it had been limited to another person, terminable five years after the death of the settlor. The minority held that while this was a sufficient distinction to support Reinecke v. Northern Trust Company, supra, 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397, the rationale of Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, inevitably led to the conclusion that the language just quoted from § 302(c) should be enforced as it read; that May v. Heiner, supra, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, had been overruled; and that in all cases in which a settlor reserved to himself a life interest, with remainders over, the principal, of the fund must be included in his estate at his death. We do not understand that anyone asserts that any distinction exists between a case where the settlor reserves a life interest to himself and where he reserves a power to appoint to others the income during his life, as he did in the Washington Trust Company case.
The opinion of the majority in Helvering v. Hallock, supra, did not explicitly, or by inference from anything said, declare that May v. Heiner, supra, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, was no longer law. We do not forget that in a note on page 120 of 309 U.S., page 452 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368, Frankfurter, J., spoke of the “Congressionally discarded May v. Heiner doctrine;” but it would be quite unwarranted from that to infer that the court meant to overrule that “doctrine,” and the note was added for quite another purpose. The minority was arguing that the distinction between Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996, and Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 54 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, had received Congressional recognition by later legislation, because, although the doctrine of May v. Heiner, supra, 281 U.S. 238, had been “discarded”, Congress had left Helvering v. St. Louis Union Trust Co., supra, untouched. It was to meet this argument that the note was directed; it was intended negatively: i.e., to prove that the amendment was not a legislative recognition that the distinction between Klein v. United States, supra, and Helvering v. St. Louis Union Trust Co. remained in effect; it cannot properly be interpreted as holding that the amendment was a legislative interpretation that May v. Heiner, supra, had been wrongly decided. Perhaps it was wrongly decided; perhaps the amendment is evidence that it was; but the Supreme Court did not say so, or indicate that it thought so. It is true that Roberts, J. in his dissent found no difference (309 U.S. at page 127, page 455 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368) between that decision and Helvering v. St. Louis Union Trust Co., supra, 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and apparently thought that consistently, May v. Heiner, supra, must also fall, but the majority did not share his opinion.
[89]*89Helvering v. Hallock, supra, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, was concerned with quite another situation. The settlor had provided that, if he survived his wife — who had a life estate — the remainder went to him; but if she survived him, the remainder went to her. All that was decided was that, when that was the intent, it made no difference what was the form of words used. It was enough that the settlor’s death cut off an interest which he had reserved to himself upon a condition then determined; that made the remainder a part of his estate. This we have already once decided. Bankers Trust Company v. Higgins, 2 Cir.,
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L. HAND, Circuit Judge.
These appeals (petitions to review) are from two orders of the Tax Court, expunging deficiencies in estate taxes, assessed against executors of two decedent estates under the following circumstances. In Proctor’s case the testatrix on December 18th, 1923, had executed two deeds, by one of which she transferred securities to trustees to pay the income to herself for life, and at her death to divide the principal into two equal parts, the principal of one of which they were to pay over to her son “in absolute property”, and the income of the other they were to pay over to the son during his life, with remainders upon his death to her grandchildren then living, “per capita and not per stirpes.” If the son died before her, the trustees were to distribute the principal upon her death among her grandchildren then living per capita; if the son should die “during * * * the trust”, and if the grantor died without grandchildren, she limited a remainder to the “heirs at law or legal representatives” of her son and daughter. The other deed was the counterpart of that just described except that the grantor’s daughter replaced her son as beneficiary.
In the Washington Trust Company case the testator had executed two deeds of trust, one on December 11, 1923, and the other in September, 1929. By the first he [88]*88transferred securities to trustees to pay the income during his life to anyone whom he should designate”, any residue to accumulate; and upon hist death to pay so much of the income to his wife for life “as she may request”, and on her death, if she survived him, or on his death, if she did not, to pay the income to his children then living, with survivorship in case any child had died without issue: the share of any child who died leaving issue to pass to his issue. It is not necessary to set out in full the detailed provisions of the second deed; they present no variants from the first which are relevant to the question involved here. The1 Commissioner ruled— and a minority of the Tax Court agreed— that in the case of all four trusts, the principal should be included in the gross estate of the grantor at the time of his or her death, by virtue of that passage in § 302(c) of the Revenue Act of 1926, 26 U. S.C.A. Int.Rev.Acts, page 227, which before the amendment of 1931, read as follows: “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.” A majority of the Tax Court held, however, that May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, which they described as “solidly grounded on Reinecke v. Northern Trust Company, 278 U.S. 339 [49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397],” forbade this result and they therefore expunged the deficiencies. The minority observed that there was a difference between May v. Heiner, supra, and Reinecke v. Northern Trust Company, supra, in that the life interest in the May v. Heiner, supra, had been limited to the settlor, while in the Reinecke v. Northern Trust Company, supra, it had been limited to another person, terminable five years after the death of the settlor. The minority held that while this was a sufficient distinction to support Reinecke v. Northern Trust Company, supra, 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397, the rationale of Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, inevitably led to the conclusion that the language just quoted from § 302(c) should be enforced as it read; that May v. Heiner, supra, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, had been overruled; and that in all cases in which a settlor reserved to himself a life interest, with remainders over, the principal, of the fund must be included in his estate at his death. We do not understand that anyone asserts that any distinction exists between a case where the settlor reserves a life interest to himself and where he reserves a power to appoint to others the income during his life, as he did in the Washington Trust Company case.
The opinion of the majority in Helvering v. Hallock, supra, did not explicitly, or by inference from anything said, declare that May v. Heiner, supra, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, was no longer law. We do not forget that in a note on page 120 of 309 U.S., page 452 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368, Frankfurter, J., spoke of the “Congressionally discarded May v. Heiner doctrine;” but it would be quite unwarranted from that to infer that the court meant to overrule that “doctrine,” and the note was added for quite another purpose. The minority was arguing that the distinction between Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996, and Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 54 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, had received Congressional recognition by later legislation, because, although the doctrine of May v. Heiner, supra, 281 U.S. 238, had been “discarded”, Congress had left Helvering v. St. Louis Union Trust Co., supra, untouched. It was to meet this argument that the note was directed; it was intended negatively: i.e., to prove that the amendment was not a legislative recognition that the distinction between Klein v. United States, supra, and Helvering v. St. Louis Union Trust Co. remained in effect; it cannot properly be interpreted as holding that the amendment was a legislative interpretation that May v. Heiner, supra, had been wrongly decided. Perhaps it was wrongly decided; perhaps the amendment is evidence that it was; but the Supreme Court did not say so, or indicate that it thought so. It is true that Roberts, J. in his dissent found no difference (309 U.S. at page 127, page 455 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368) between that decision and Helvering v. St. Louis Union Trust Co., supra, 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and apparently thought that consistently, May v. Heiner, supra, must also fall, but the majority did not share his opinion.
[89]*89Helvering v. Hallock, supra, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, was concerned with quite another situation. The settlor had provided that, if he survived his wife — who had a life estate — the remainder went to him; but if she survived him, the remainder went to her. All that was decided was that, when that was the intent, it made no difference what was the form of words used. It was enough that the settlor’s death cut off an interest which he had reserved to himself upon a condition then determined; that made the remainder a part of his estate. This we have already once decided. Bankers Trust Company v. Higgins, 2 Cir., 136 F.2d 477. If therefore May v. Heiner, supra, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, is to be overruled, we do not see how Helvering v. Hallock, supra, can be thought to contribute to that result; it must be overruled by a new and altogether independent lift of power, which it is clearly not ours to exercise. Furthermore, if the Commissioner is right, Helvering v. Hallock, supra, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, also overruled Hassett v. Welch, 303 U.S. 303, 58 S.Ct. 559, 82 L.Ed. 858, sub silentio. That decision had held that the amendment to § 302(c) did not operate retroactively; and it would not have been necessary to discuss that question, nor would the actual result have been the same, if May v. Heiner, supra, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244, had not been law. Finally, our decision is in accord with United States v. Brown, 9 Cir., 134 F.2d 372, and with New York Trust Company v. United States, 51 F.Supp. 733, decided by the Court of Claims on October 4, 1943. Indeed, we should have been content to affirm the orders before us on the authority of these cases and our own, save for the differences of opinion which have developed. Since the right answer is obviously not as plain as it appears to us to be, we have felt that we should state our reasons.
Orders affirmed.