[1054]*1054opinion-.
Black:
The question involved has been previously stated. The applicable statute is section 302 of the Eevenue Act of 1926 as amended by section 803 (a) of the Eevenue Act of 1932 and section 404 of the Eevenue Act of 1934, the material provisions of which are set out in the margin.1
Petitioners contend that the amount of $20,030.43 paid by the insurance company to the decedent’s daughter Marcella V. Keller [1055]*1055represents “insurance under policies taken out by the decedent upon her own life” as that term is used in subdivision (g) of the applicable statute, and that, since the amount was not in excess of the specific exemption of $40,000 provided for in subdivision (g), no part thez’eof should be included in the decedent’s gross estate. No other beneficiaries received any amount as insurance under any policy taken out by the decedent upon her own life, and the $20,030.43, if insurance, was the only insurance received by Marcella V. Keller as the beneficiary under a policy taken out by the decedent upon her own life. On the other hand, the respondent contends that the insurance policy and the annuity contract must be regarded as one single, indivisible contract between the decedent and the insurance company ; that as so regarded the two contracts in substance amounted to a “transfer” of $21,200 (the total premiums paid for both contracts) made by the decedent during her lifetime both (1) in contemplation of death, and (2) under such circumstances whereby the decedent retained for her life the enjoyment of or the right to the income from the property transferred; that the value of the transfer upon the decedent’s death was the amount of $20,030.43 which was paid by the insurance company to the decedent’s daughter; and that the latter amount was therefore includable in the decedent’s gross estate under subdivision (c) of the applicable statute referred to above and not under section 302 (g) as insurance.
The controversy in this proceeding concerns two separate and distinct contracts, one a single premium life insurance policy and the other a single premium life annuity. Both policies were written on the regular standard forms and on the basis of the respective mortality table ordinarily used in writing life insurance and annuities, respectively. Each contract contains a proviso to the effect that the agreement and the respective application therefor “constitute the entire contract between the parties.” The application for each contract was made by the decedent on the same day and the contracts were executed on the same day. Petitioners, however, concede that the insurance company would not have issued the life insurance policy to the decedent at her attained age of 75 without issuing a life annuity contract “in conjunction with” the life insurance policy, but contend that this requirement was merely a condition precedent to the issuance of the life insurance policy which was imposed by the insurance company for the purpose of reducing but not entirely eliminating its risk against loss due to premature death, and that such a condition when once complied with does not make the insurance policy when once issued any different than any other insurance policy issued on identically the same kind of form to an applicant who is not required also to purchase an annuity. Petitioners argue that in[1056]*1056surance companies have a right to require certain reasonable conditions precedent before they will issue a certain type of policy, but, once this condition precedent is complied with, the contract must be interpreted in accordance with its actual terms. Williston, in his chapter on general rules for the interpretation or construction of contracts, says at section 628:
Where a writing refers to another document, that other document, or so much of it as is referred to in it, is to be construed as part of the writing. * * * JSven where a writing does not refer to another writing, if such other writing was made as part of the same transaction, the two should be construed together. It is usually said that the two writings together form one contract. Though this is generally true, it is not always accurate, even though the several writings are part of the same bargain. Where one of the writings is a formal document it cannot be incorporated in an ordinary writing. A note and a mortgage to secure it are not strictly one contract, though doubtless each is to be construed in connection with the other in order to determine its meaning. * * *
In the instant proceeding it is our opinion that the two contracts must be construed in connection with each other and that in so doing it is of no great importance whether the things agreed upon by the decedent and the insurance company on December 31, 1934, were embodied in one policy or two. The question in either event remains the same, namely, whether the amount of $20,030.43 paid by the insurance company to the decedent’s daughter was paid to her as “insurance” as petitioners contend or as the result of a transfer in trust or otherwise made by the decedent in contemplation of death and intended to take effect at death as the respondent contends and not as “insurance.”
Even if the decedent and the insurance company had executed all the things they agreed to on December 31, 1934, in one document instead of two, the cases hold that if the agreement sets forth separate features which are clearly severable, each feature must be given its proper application. Equitable, Life Assurance Society of United States v. Deem, 91 Fed. (2d) 569; Connecticut General Life Insurance Co. v. McClellan, 94 Fed. (2d) 445; Downey v. German Alliance Insurance Co., 252 Fed. 701; Legg v. St. John, 296 U. S. 489.
In Legg v. St. John, supra, the question before the Supreme Court was whether Legg, a voluntary bankrupt, or his trustee was the person entitled to certain future monthly disability benefits payable under a contract entered into between Legg and an insurance company before the adjudication. Several years prior to the adjudication Legg took out a life insurance policy under which the company agreed, in consideration for a stated annual premium, to pay a certain amount upon his death. By a supplementary contract issued on the same day and attached to the policy, the company, in consideration for an additional annual premium of a stated amount, agreed to pay [1057]*1057a monthly benefit of $174.52 upon due proof of total and permanent disability, which latter event happened several years before the adjudication. In holding that the disability benefits were payable to the trustee and not to the bankrupt, Mr. Justice Brandéis in the course of his opinion said:
Second. The fact that the disability benefits are provided for in a “Supplementary Contract” issued on the same day as the policy and physically attached thereto does not make them life insurance. The life policy and the contract were executed as distinct instruments. The “Supplementary Contract” was to operate for some purposes as if a part of the life policy. But for all other purposes it is a separate obligation. The hazards covered by the two instruments are obviously different. The beneficiaries differ also. The payment under the life policy was to be made to the wife; the disability benefits are to be paid to Legg himself.
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[1054]*1054opinion-.
Black:
The question involved has been previously stated. The applicable statute is section 302 of the Eevenue Act of 1926 as amended by section 803 (a) of the Eevenue Act of 1932 and section 404 of the Eevenue Act of 1934, the material provisions of which are set out in the margin.1
Petitioners contend that the amount of $20,030.43 paid by the insurance company to the decedent’s daughter Marcella V. Keller [1055]*1055represents “insurance under policies taken out by the decedent upon her own life” as that term is used in subdivision (g) of the applicable statute, and that, since the amount was not in excess of the specific exemption of $40,000 provided for in subdivision (g), no part thez’eof should be included in the decedent’s gross estate. No other beneficiaries received any amount as insurance under any policy taken out by the decedent upon her own life, and the $20,030.43, if insurance, was the only insurance received by Marcella V. Keller as the beneficiary under a policy taken out by the decedent upon her own life. On the other hand, the respondent contends that the insurance policy and the annuity contract must be regarded as one single, indivisible contract between the decedent and the insurance company ; that as so regarded the two contracts in substance amounted to a “transfer” of $21,200 (the total premiums paid for both contracts) made by the decedent during her lifetime both (1) in contemplation of death, and (2) under such circumstances whereby the decedent retained for her life the enjoyment of or the right to the income from the property transferred; that the value of the transfer upon the decedent’s death was the amount of $20,030.43 which was paid by the insurance company to the decedent’s daughter; and that the latter amount was therefore includable in the decedent’s gross estate under subdivision (c) of the applicable statute referred to above and not under section 302 (g) as insurance.
The controversy in this proceeding concerns two separate and distinct contracts, one a single premium life insurance policy and the other a single premium life annuity. Both policies were written on the regular standard forms and on the basis of the respective mortality table ordinarily used in writing life insurance and annuities, respectively. Each contract contains a proviso to the effect that the agreement and the respective application therefor “constitute the entire contract between the parties.” The application for each contract was made by the decedent on the same day and the contracts were executed on the same day. Petitioners, however, concede that the insurance company would not have issued the life insurance policy to the decedent at her attained age of 75 without issuing a life annuity contract “in conjunction with” the life insurance policy, but contend that this requirement was merely a condition precedent to the issuance of the life insurance policy which was imposed by the insurance company for the purpose of reducing but not entirely eliminating its risk against loss due to premature death, and that such a condition when once complied with does not make the insurance policy when once issued any different than any other insurance policy issued on identically the same kind of form to an applicant who is not required also to purchase an annuity. Petitioners argue that in[1056]*1056surance companies have a right to require certain reasonable conditions precedent before they will issue a certain type of policy, but, once this condition precedent is complied with, the contract must be interpreted in accordance with its actual terms. Williston, in his chapter on general rules for the interpretation or construction of contracts, says at section 628:
Where a writing refers to another document, that other document, or so much of it as is referred to in it, is to be construed as part of the writing. * * * JSven where a writing does not refer to another writing, if such other writing was made as part of the same transaction, the two should be construed together. It is usually said that the two writings together form one contract. Though this is generally true, it is not always accurate, even though the several writings are part of the same bargain. Where one of the writings is a formal document it cannot be incorporated in an ordinary writing. A note and a mortgage to secure it are not strictly one contract, though doubtless each is to be construed in connection with the other in order to determine its meaning. * * *
In the instant proceeding it is our opinion that the two contracts must be construed in connection with each other and that in so doing it is of no great importance whether the things agreed upon by the decedent and the insurance company on December 31, 1934, were embodied in one policy or two. The question in either event remains the same, namely, whether the amount of $20,030.43 paid by the insurance company to the decedent’s daughter was paid to her as “insurance” as petitioners contend or as the result of a transfer in trust or otherwise made by the decedent in contemplation of death and intended to take effect at death as the respondent contends and not as “insurance.”
Even if the decedent and the insurance company had executed all the things they agreed to on December 31, 1934, in one document instead of two, the cases hold that if the agreement sets forth separate features which are clearly severable, each feature must be given its proper application. Equitable, Life Assurance Society of United States v. Deem, 91 Fed. (2d) 569; Connecticut General Life Insurance Co. v. McClellan, 94 Fed. (2d) 445; Downey v. German Alliance Insurance Co., 252 Fed. 701; Legg v. St. John, 296 U. S. 489.
In Legg v. St. John, supra, the question before the Supreme Court was whether Legg, a voluntary bankrupt, or his trustee was the person entitled to certain future monthly disability benefits payable under a contract entered into between Legg and an insurance company before the adjudication. Several years prior to the adjudication Legg took out a life insurance policy under which the company agreed, in consideration for a stated annual premium, to pay a certain amount upon his death. By a supplementary contract issued on the same day and attached to the policy, the company, in consideration for an additional annual premium of a stated amount, agreed to pay [1057]*1057a monthly benefit of $174.52 upon due proof of total and permanent disability, which latter event happened several years before the adjudication. In holding that the disability benefits were payable to the trustee and not to the bankrupt, Mr. Justice Brandéis in the course of his opinion said:
Second. The fact that the disability benefits are provided for in a “Supplementary Contract” issued on the same day as the policy and physically attached thereto does not make them life insurance. The life policy and the contract were executed as distinct instruments. The “Supplementary Contract” was to operate for some purposes as if a part of the life policy. But for all other purposes it is a separate obligation. The hazards covered by the two instruments are obviously different. The beneficiaries differ also. The payment under the life policy was to be made to the wife; the disability benefits are to be paid to Legg himself. A separate and different premium was exacted for the obligations assumed in each instrument. It was provided that forfeiture of the life policy would terminate all rights arising from disability; but the supplementary contract could be terminated by Legg without affecting otherwise his life policy.
In tbe instant proceeding we think the agreement between the decedent and the insurance company as evidenced by the two documents, the insurance policy and the annuity contract, shows an intention on the part of the contracting parties to enter into an insurance and annuity contract with clearly severable features as to each, rather than a contract of trusteeship with no separate features. For example, the insurance company agreed to pay Mrs. Keller a life annuity of $390.84. Her life expectancy was 10.5 years when the contract was taken out and if she had lived that expectancy the total payments to her would have been $4,108.82 which apparently would have been a full return except the comparatively small amount for “loading” to her of the premium of $3,258.20 plus the interest earned thereon. But suppose she had lived to be as old as her mother and grandmother, which the evidence shows was 90 years each. That would have meant that the insurance company would have paid her annuities of $390.84 for 15 years which would have been $5,862.60. This would apparently have been considerably more than the total premium of $3,258.20 which she paid for the annuity, plus the interest earned thereon. Of course, regardless of how long Mrs. Keller had lived, the insurance policy of $20,000 payable at death to her designated beneficiary would have remained the same. Attention is called to these features in order to show the clear separability of the two contracts notwithstanding that they were taken out as parts of one transaction. The writings did not take the form of any declaration of trust. No provision was made for any compensation to be paid the insurance company as a trustee. The decedent was referred to in one instrument as “The Insured” and in the other instrument as the “Annuitant.” The only considerations contracted for by the insurance company were the two separately [1058]*1058stated premiums of $17,941.80 and $8,258.20, respectively. Each premium was based upon a different mortality table, one appertaining to life insurance and the other to life annuities. The obligations of the insurance company, as we have already pointed out, were different as to each separate feature. In consideration for the single premium of $17,941.80 it agreed to pay the decedent’s daughter $20,000 upon receipt of due proof of the death of the decedent. This feature also provided for a participation in dividends and provisions for loans and a cash surrender value. The latter began at $16,280 after the policy had been in force for one year and gradually increased to $19,400 over a period of 20 years. In consideration for the single premium of $3,258.20 the company merely agreed to pay the decedent a semiannual annuity of $195.42 during her lifetime. The latter had no cash surrender value and all obligations under this feature ended completely upon the death of the decedent. After a period of one year the insurance feature could be eliminated by the decedent electing to surrender that feature for its cash value without in any way affecting the annuity feature. It seems to us that the situation is simply this: Even assuming that Mrs. Keller did not want to purchase an annuity (and we have no evidence to that effect) and only did so because she had to do it to secure the life insurance policy which she did want, nevertheless when the purchase was complete she owned two contracts and we have no cause to say that her life insurance policy was not life insurance merely because she had to purchase an annuity policy along with it. We are cited to no authority which would compel any such holding. Suppose we look at the insurance policy from the standpoint of the insurance company which wrote the policy rather than from the standpoint of petitioner, who took it out. The evidence in this proceeding shows that in determining its liability with respect to outstanding contracts the insurance company included in its annual statement to the Superintendent of Insurance of the State of New York for the year ending December 31,1934, the insurance policy at a present value of $16,580. Beserves, of course, had to be carried by the insurance company for this amount to make good its liability under the policy. Under the provisions of section 203 (a) (2) of the Revenue Act of 1934, in determining its net income subject to tax the insurance company is allowed to deduct “An amount equal to 4 per centum of the mean of the reserve funds required by law and held at the beginning and end of the taxable year * * Could it be plausibly contended that the insurance company in determining the mean of its reserve funds would not have the right to include the reserves held to insure the payment of this insurance policy ? We think not. It seems to us that the named reserve of $16,580 would be such reserves as are contemplated by section 203 (a) (2). They are not mere solvency reserves. They are life [1059]*1059insurance reserves “required by law.” Cf. Helvering v. Illinois Life Insurance Co., 299 U. S. 88; Helvering v. Inter-Mountain Life Insurance Co., 294 U. S. 686.
Notwithstanding these separate features to which we have referred, which we think are severable and should be so treated, the respondent contends that because the insurance company would not have issued the insurance policy without the annuity this fact alone controls and brings the instant proceeding within the rule enunciated in Old Colony Trust Co. et al., Executors, 37 B. T. A. 435; affirmed by the First Circuit on March 2, 1939, 102 Fed. (2d) 380, and followed in Chemical Bank & Trust Co. et al., Executors, 37 B. T. A. 535. Those cases, however, involved an entirely different situation than is involved here in that there was no separate insurance feature present in either of them. In the Old Colony case the contract was designated on its face “life annuity with principal sum payable at death.” In the Chemical Bamh case the contract was designated on its face as “Investment Annuity. Death Befund Payable at Death of Annuitant.” Life insurance was not mentioned in either contract. There was but one consideration paid in each of those cases, whereas the decedent here agreed to pay two separate premiums, one for insurance as such and the other for an annuity as such. The contracting party other than the respective insurance company in each of the cases relied upon by the respondent was referred to throughout those instruments as the “Annuitant” and nowhere therein was he ever referred to as the insured. The annuity in each case was calculated on a basis of Sy2 percent on the principal sum and only this 3% percent was paid to the annuitant plus any excess interest earned and there was no diminution of the principal fund. Even as to the kind of contracts just described, the court in Bodine v. Commissioner, 103 Fed. (2d) 982, held them contracts of insurance and in that respect took issue with In re Thornton's Estate, 186 Minn. 351; 243 N. W. 389, and Ballou v. Fisher, 154 Ore. 548; 61 Pac. (2d) 433. In the Old Colony case the “principal sum” of $40,000 was payable to the annuitant “at any time, provided there is no legal restriction to the contrary” and in the Chemical Bcmh case the “death refund” of $20,000 was payable to the annuitant “at any time prior to the death of the Annuitant * * *.” In the instant proceeding the annuity feature had no cash surrender value, and the decedent after paying her single premium of $3,258.20 could recover not one cent more than her semiannual annuity of $195.42 and these payments ceased with the last payment falling due prior to her death. In the instant proceeding the decedent could have surrendered her insurance policy after it had been in force for one year for its stated cash surrender value of $16,280, which was $3,720 less than its face amount, and the surrender thereof would not have effected her [1060]*1060annuity in any way. Cash, surrender values are common incidents of life insurance policies. Legg v. St. John, supra.
It is these differences which we think compel us to recognize the separate features of “insurance” and “annuity” that are here involved. The annuity contract issued to the decedent was the same contract that would have been issued to any female person of her age for a single premium of $3,258.20. It was a plain annuity, no more and no less. Likewise the insurance policy was a plain, ordinary policy of insurance. It was no different in its terms from hundreds of insurance policies that are being written by the insurance companies every day. We think effect should be given to these policies in accordance with their plain terms, rather than to hold as the respondent has determined. It is therefore our opinion that at the time of the death of Anna M. Keller she was the owner of a $20,000 insurance policy in the Equitable Life Assurance Society of the United States, of which her daughter, Marcella Y. Keller, was the designated beneficiary and the $20,030.43 in question represents “insurance” as that term is used in section 302 (g) of the Revenue Act of 1926 as amended, and since the amount is not in excess of the $40,000 exemption provided for in the statute, no part thereof is includable in the decedent’s gross estate. Congress can, of course, remove the $40,000 insurance exemption contained in section 302 (g) at any time it sees fit, but as long as the exemption is there we have no cause to deny it under such circumstances as exist in the instant case.
Reviewed by the Board.
Decision will he entered for the petitioners.