[36]*36OPINION.
Littleton :
The first question is whether the Commissioner erred in including in the gross estate certain real estate in Powell Township, Mich., of the value of $5,600.
The second issue relates to the question whether the transfer of the 4,434 shares of common stock of the Congress Hotel Co., made by the decedent to his wife on December 3, 1921, about five months prior to his death, was made in contemplation of death or was intended to take effect in possession or enjoyment at or after death.
The third issue is whether 3,045 shares of the Congress Hotel Co. stock, being the number of shares remaining in the estate exclusive of the 4,434 shares transferred to Mrs. Kaufman and the 6,556 shares given by the estate in payment of the decedent’s note for $437,100 and not purchased by his brothers under the agreement, constituted a part of the gross estate, and whether, if they did, they should be included therein at $101.50 a share, which is conceded to be the fair market value at the time of death, or at the value for which the surviving brothers might have purchased them, had they so elected, under the terms of the contract.
[37]*37The fourth issue relates to the question whether the 400 shares of the capital stock of the Chatham & Phenix National Bank owned by the decedent’s wife and three children, received by them in exchange for $84,500 of Liberty bonds given to them by the decedent on April 30, 1920, $2,000 of Liberty bonds owned by the decedent’s three children and purchased for them by their mother with their own funds, and $3,000 contributed by the decedent at the time of the exchange on December 15, 1921, should be included in the gross estate as a transfer made in contemplation of death or intended to take effect in possession or enjoyment at or after death.
The fifth or last issue relates to the propriety of a deduction of $15,000 for executor’s commissions.
As to the first issue, it appears that at the time of his death the decedent and his wife owned certain real estate in Michigan valued at $5,600. The executors excluded this property and the Commissioner included the same in the gross estate of the decedent at its full value.
We have no evidence as to when or under what circumstances the decedent and his wife acquired this property. It was merely alleged in the petition that they acquired it as tenants in the entirety, and this was admitted by the Commissioner in his answer. Upon this the executrix claimed that no portion of the value of the property should have been included in determining the value of the gross estate of the decedent. The only reason given for this claim was that the statutes of Michigan recognize tenancy by the entirety. The Revenue Act of 1921, section 402 (d), provides that the value of the gross estate of a decedent shall be determined by including the value at the time of his death to the extent of any interest therein held jointly or as tenants in the entirety by the decedent or any other person.
With no more evidence than is contained in the record concerning this point, we affirm the Commissioner’s determination.
As to the second issue, the Board is of the opinion that, under the facts hereinbefore set forth in detail, this stock was not transferred in contemplation of death within the meaning of the Revenue Act of 1921. It appears that the decedent, prior to any illness of which the Board has knowledge, had told his wife that he intended to make her a gift of some Congress Hotel Co. stock and that this was not done for the reason that the stock was being used by him as security for loans from various banks. At the time the stock was transferred in December, 1921, the decedent had fully recovered from his illnesses. As a result, however, of a situation arising from the terms of certain agreements between himself and his brothers, he concluded, since he was the owner of practically all of the capital stock of the Congress Hotel Co., to make a gift of some of it to his [38]*38wife, not because be contemplated death within a reasonably near future, but because he desired to protect his family in the event of his death from loss by reason of the small amount which his brothers would pay for the stock should they decide to purchase it under the terms of the contract between them. On the question of whether the transfer of this stock was one intended to take effect in possession or enjoyment at or after death, the Board is of the opinion that the Commissioner correctly included the value thereof in the gross estate upon the ground that it was a transfer intended to take effect at death. We reach this conclusion from all the facts and circumstances surrounding the gift and relating to the decedent’s conduct thereafter.
It is true that the stock was delivered to decedent’s wife and transferred to her upon the books of the company. It appears however, that he reserved to himself the income therefrom. A 4 per cent dividend was declared on the stock on January 1, 1922— less than one month after the gift — and he directed that the same be paid to him. This was also true in respect of the dividend of 2 per cent declared in April, 1922. Transactions between husband and wife do not partake of the same formalities as those between strangers, and the intention of the donor in such a case is best determined from his acts and conduct in relation to the subject matter. It was not necessary for the decedent to have a formal understanding with his wife that the dividends upon the stock should be paid to him during his life or for any period of time. He had no reason to believe that she would insist upon the dividends being paid to her. There is nothing in the record to indicate that the decedent, prior to his death, changed his intention in regard to the payment of dividends to him and, under these circumstances, the transfer took effect at his death.
In the case of In re Brandreth's Estate, 169 N. Y. 437; 62 N. E. 563, the decedent had made a transfer of certain stock, reserving to himself the dividends thereon and the right to vote the stock. The court said:
The effect of these instruments was to transfer to the daughters the remainder in the stock after the donor’s death, reserving to the latter an estate for his life. It is said by the learned appellate division that there is a difference between the stock itself and the dividends that may be declared upon it. This is doubtless true, but it is the same difference thát exists between land and its rents and profits or between a fund and its income. A devise of the rents and profits of land or a bequest of the income of a fund grants an estate in the land or the fund itself in fee or for life, depending on whether the gift of the income or rent is for life or without limitation. Jennings v. Conboy, 73 N. Y. 230. The only income stocks can produce is the dividend declared thereon, and the reservation of the dividends for life is the reservation of an estate for life. A stockholder has no title to the earnings of a corpora[39]*39tion before a dividend is declared. Until that time the earnings pass with the stock as an incident thereof, and when a dividend is declared it is a profit on the stock. * * *
* * * Though a remainder may vest in title at its creation, it cannot vest in possession until the determination of the prior estate. It makes no difference in this respect whether the remainder is vested indefensibly or is contingent or subject to be devested.
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[36]*36OPINION.
Littleton :
The first question is whether the Commissioner erred in including in the gross estate certain real estate in Powell Township, Mich., of the value of $5,600.
The second issue relates to the question whether the transfer of the 4,434 shares of common stock of the Congress Hotel Co., made by the decedent to his wife on December 3, 1921, about five months prior to his death, was made in contemplation of death or was intended to take effect in possession or enjoyment at or after death.
The third issue is whether 3,045 shares of the Congress Hotel Co. stock, being the number of shares remaining in the estate exclusive of the 4,434 shares transferred to Mrs. Kaufman and the 6,556 shares given by the estate in payment of the decedent’s note for $437,100 and not purchased by his brothers under the agreement, constituted a part of the gross estate, and whether, if they did, they should be included therein at $101.50 a share, which is conceded to be the fair market value at the time of death, or at the value for which the surviving brothers might have purchased them, had they so elected, under the terms of the contract.
[37]*37The fourth issue relates to the question whether the 400 shares of the capital stock of the Chatham & Phenix National Bank owned by the decedent’s wife and three children, received by them in exchange for $84,500 of Liberty bonds given to them by the decedent on April 30, 1920, $2,000 of Liberty bonds owned by the decedent’s three children and purchased for them by their mother with their own funds, and $3,000 contributed by the decedent at the time of the exchange on December 15, 1921, should be included in the gross estate as a transfer made in contemplation of death or intended to take effect in possession or enjoyment at or after death.
The fifth or last issue relates to the propriety of a deduction of $15,000 for executor’s commissions.
As to the first issue, it appears that at the time of his death the decedent and his wife owned certain real estate in Michigan valued at $5,600. The executors excluded this property and the Commissioner included the same in the gross estate of the decedent at its full value.
We have no evidence as to when or under what circumstances the decedent and his wife acquired this property. It was merely alleged in the petition that they acquired it as tenants in the entirety, and this was admitted by the Commissioner in his answer. Upon this the executrix claimed that no portion of the value of the property should have been included in determining the value of the gross estate of the decedent. The only reason given for this claim was that the statutes of Michigan recognize tenancy by the entirety. The Revenue Act of 1921, section 402 (d), provides that the value of the gross estate of a decedent shall be determined by including the value at the time of his death to the extent of any interest therein held jointly or as tenants in the entirety by the decedent or any other person.
With no more evidence than is contained in the record concerning this point, we affirm the Commissioner’s determination.
As to the second issue, the Board is of the opinion that, under the facts hereinbefore set forth in detail, this stock was not transferred in contemplation of death within the meaning of the Revenue Act of 1921. It appears that the decedent, prior to any illness of which the Board has knowledge, had told his wife that he intended to make her a gift of some Congress Hotel Co. stock and that this was not done for the reason that the stock was being used by him as security for loans from various banks. At the time the stock was transferred in December, 1921, the decedent had fully recovered from his illnesses. As a result, however, of a situation arising from the terms of certain agreements between himself and his brothers, he concluded, since he was the owner of practically all of the capital stock of the Congress Hotel Co., to make a gift of some of it to his [38]*38wife, not because be contemplated death within a reasonably near future, but because he desired to protect his family in the event of his death from loss by reason of the small amount which his brothers would pay for the stock should they decide to purchase it under the terms of the contract between them. On the question of whether the transfer of this stock was one intended to take effect in possession or enjoyment at or after death, the Board is of the opinion that the Commissioner correctly included the value thereof in the gross estate upon the ground that it was a transfer intended to take effect at death. We reach this conclusion from all the facts and circumstances surrounding the gift and relating to the decedent’s conduct thereafter.
It is true that the stock was delivered to decedent’s wife and transferred to her upon the books of the company. It appears however, that he reserved to himself the income therefrom. A 4 per cent dividend was declared on the stock on January 1, 1922— less than one month after the gift — and he directed that the same be paid to him. This was also true in respect of the dividend of 2 per cent declared in April, 1922. Transactions between husband and wife do not partake of the same formalities as those between strangers, and the intention of the donor in such a case is best determined from his acts and conduct in relation to the subject matter. It was not necessary for the decedent to have a formal understanding with his wife that the dividends upon the stock should be paid to him during his life or for any period of time. He had no reason to believe that she would insist upon the dividends being paid to her. There is nothing in the record to indicate that the decedent, prior to his death, changed his intention in regard to the payment of dividends to him and, under these circumstances, the transfer took effect at his death.
In the case of In re Brandreth's Estate, 169 N. Y. 437; 62 N. E. 563, the decedent had made a transfer of certain stock, reserving to himself the dividends thereon and the right to vote the stock. The court said:
The effect of these instruments was to transfer to the daughters the remainder in the stock after the donor’s death, reserving to the latter an estate for his life. It is said by the learned appellate division that there is a difference between the stock itself and the dividends that may be declared upon it. This is doubtless true, but it is the same difference thát exists between land and its rents and profits or between a fund and its income. A devise of the rents and profits of land or a bequest of the income of a fund grants an estate in the land or the fund itself in fee or for life, depending on whether the gift of the income or rent is for life or without limitation. Jennings v. Conboy, 73 N. Y. 230. The only income stocks can produce is the dividend declared thereon, and the reservation of the dividends for life is the reservation of an estate for life. A stockholder has no title to the earnings of a corpora[39]*39tion before a dividend is declared. Until that time the earnings pass with the stock as an incident thereof, and when a dividend is declared it is a profit on the stock. * * *
* * * Though a remainder may vest in title at its creation, it cannot vest in possession until the determination of the prior estate. It makes no difference in this respect whether the remainder is vested indefensibly or is contingent or subject to be devested. In the present case the prior estate is one for the life of the donor, and therefore the remainder transferred to his daughters falls within the exact provision of the statute as a transfer to take effect in possession or enjoyment on the death of the donor.
See, also, In re Keeney's Estate, 194 N. Y. 281; 87 N. E. 428.
As to the third issue, it is the opinion of the Board that the 8,045 shares which the surviving brothers, under the terms of the contract of January 10, 1922, had a right to purchase at par, but which they did not purchase, constituted a part of the estate and were properly valued by the Commissioner at $101.50 a share for the purpose of the tax. The executrix contends that this stock was subject to an agreement between the decedent and his brothers whereby they had a right to purchase the stock, and that whatever was over and above the price at which they could purchase the same should be considered as a gift from them. The surviving brothers were not compelled to purchase the stock and the most that they can be said to have had was an option to do so. They did not exercise this option and the stock remained a part of the estate.
As to the fourth issue, the Board is of the opinion under the evidence that no portion of the value of the 400 shares of the Chatham & Phenix National Bank stock constituted a part of the gross estate. As set forth in the findings of fact, the decedent in April, 1920, gave to his wife, for herself and children, $84,500 in Liberty bonds, which she kept in her possession and over which he did not have or exercise any control. In addition, it appears that Mrs. Kaufman from time to time, with separate funds of her three children, had purchased Liberty bonds in the amount of $2,000. On December 15, 1921, it appears that she concluded to exchange the Liberty bonds for stock of the Chatham & Phenix National Bank and that she delivered the bonds in the amount of $86,500 to her husband and went with him to make the exchange. At that time 400 shares of Chatham & Phenix National Bank stock were issued in the name of his wife and their three children in exchange for the $86,500 of Liberty bonds and $3,000 contributed out of his own funds. At the same time the decedent acquired in his own name 200 shares. This stock was delivered by the bank to Mrs. Kaufman and retained by her without any control thereof by her husband.
The evidence does not warrant the conclusion that the gift of the Liberty bonds on April 30, 1920, or that the $3,000 contributed by the decedent toward the purchase of the Chatham & Phenix [40]*40National Bank stock, ,^vas a gift in contemplation of death or intended to take effect at or after death.
The only circumstance which might indicate that the gift of $84,500 of Liberty bonds on April 80 was intended to take effect at or after death was the delivery by Mrs. Kaufman to her husband from time to time of the coupons clipped by her from the bonds. In the opinion of the Board, however, this circumstance does not warrant the conclusion that the gift was one intended to take effect at or after death. The decedent made no reservation of the income from the bonds at the time of the gift. The coupons which were attached to the bonds constituted a part of the gift and thereafter constituted her property. Neither at the time of the gift nor at any time thereafter did the decedent ever make any statement to Mrs. Kaufman relative to the income from the bonds. Her reason for delivering the coupons to her husband was because their expenses were heavy and she wished to contribute to the payment thereof. This was entirely a voluntary act on her part and had no relation to the character of the original gift.
The fifth and last issue relates to the propriety of a deduction of $15,000 for executor’s commissions. Section 403 (a) (1) of the Kevenue Act of 1921 provides for the deduction of—
Such amounts for * * * administration expenses, claims against the estate, * * * as are allowed by the laws of the jurisdiction, whether . within or without the United States, under which the estate is being administered * * *.
The following provision is from Callaghan’s Illinois Statutes Annotated, vol. 1, ch. 3, Administration of Estates:
Par. 135 [Compensation of representative.] § 133. Executors and administrators shall be allowed as compensation for their services a sum not exceeding six per centum on the amount of personal estate, and not exceeding three per centum on the money arising from the' sale of real estate, with such additional allowances, for costs and charges in collecting and defending the claims of the estate and disposing of the same, as shall be reasonable.
The total estate left by decedent was in excess of $900,000, $437,100 of which was given in exchange for the decedent’s personal note for that amount held as collateral by his brothers. All except $6,500 of this was personal property. The debts of the decedent were $241,117.21, a large part of which was in small amounts. There is nothing to indicate that the executor’s duties required less ability or were less onerous than are usual in the settlement of estates of like amounts. The commission claimed is about one and two-thirds per centum. It is not unreasonable and should be allowed. Appeal of Samuel E. A. Stern, 2 B. T. A. 102.
Order of redetermination will be entered on IB days’ notice, under Rule 50.