MILLER, Circuit Judge.
Petitioner seeks a review of the decision of the Tax Court ordering a deficiency assessment in estate tax in the amount of $59,143.85 against the Estate of Theodore F. MacManus, deceased. 8 T.C. 330. The issue involved is whether the grantor of four trusts for the benefit of his four children retained the power to change the beneficiaries so that the value of the corpus of each of the trusts should be included in the gross estate of the grantor for purposes of the Federal estate tax. The Tax Court ruled in the affirmative.
The material facts presenting the issue may be summarized as follows: On July 18, 1923, Theodore F. MacManus created six revocable trusts, one for each of his six children. The trusts were identical in form except that a different child was named as beneficiary. The Detroit Trust Company was the trustee in all trusts. On December 30, 1924, the grantor executed an amendment to each of the trusts surrendering to the trustee all right of revocation under the instruments of July 18, 1923. However, he reserved to himself the power to designate as beneficiaries, in place of the named beneficiaries, any person bearing a certain relationship to the named beneficiary. Two of the six beneficiaries died in 1930 and 1932, and the assets of the two trusts created for their benefit were distributed under the terms of the trusts to their heirs at law.
In 1930, the grantor became dissatisfied with the Detroit Trust Company as trustee. Following numerous conferences between the grantor, his son John R. MacManus, other members of the family, and his attorney, the grantor on April 20, 1934, wrote to his son John R. MacManus that for the purpose of protecting the interest of the beneficiaries and to rehabilitate the four trusts it seemed advisable to eliminate the Trust Company, which could [699]*699be done by changing the beneficiary provisions from the three other children to John who would then act as sole trustee.
On May 9, 1934, John R. MacManus executed a declaration of trust which referred to the four original trust agreements of July 18, 1923; stated that the grantor had indicated that under the powers reserved to him in said trusts and amendments he was making John R. MacManus the sole beneficiary in each of the four trusts’ and that the purpose of so changing the beneficiaries was to facilitate a termination thereof by unanimous consent of all the parties in interest so that the trusts could be continued in a broader form to the end that if possible said trusts might be rehabilitated with John R. MacManus supplanting the Detroit Trust Company as trustee; and which acknowledged, pursuant to a common understanding with all the parties in interest, “that I shall hold all of the corpus and income of said trusts as Trustee for Theodora MacManus, Alice M. MacManus (now Alice M. Fox), Edwin Benedict MacManus and John R. MacManus, share and share alike.” On May 10, 1934, Theodore F. MacManus executed an amendment to the three trusts for Theodora, Alice and Edwin Benedict, changing the beneficiary therein to John R. MacManus.
Under date of May 11, 1934, John R. MacManus as beneficiary, Theodore F. MacManus as maker, together with his wife, and the Detroit Trust Company as trustee, executed an instrument styled “Release and Consent to Transfer Corpus of Trust Estate and Discharge of Trustee’s Obligations” which referred to the original trusts, the amendments of December -30, 1924, and May 10, 1934, the decision of the parties in interest that the corpus of the trust estate as held by the Detroit Trust Company as trustee should be transferred to John R. MacManus and all of the duties and responsibilities of the Detroit Trust Company as trustee should cease and terminate, and by which John R. MacManus, Theodore F. MacManus and his wife, being all of the parties having a present interest in the corpus of the trust estate, acknowledged the receipt and delivery of all the property and assets constituting the corpus of the trust estate and the income thereon. The closing paragraph stated that it was agreed that the Detroit Trust Company as trustee was thereby discharged and released from any and all obligation of every nature growing out of the trust agreements and amendments thereto, and that all of the rights, powers, benefits and interest in the trust estate “shall be and hereby are transferred and assigned to John R. MacManus, and in all respects, insofar as the Detroit Trust Company as Trustee is concerned, said agreements and /or supplements, and/or all right, title, interest, obligation, responsibility and liability with respect thereto and/or the corpus of the Trust Estate covered thereby, including all accumulations thereto, shall hereby cease and terminate, and the said Theodore F. MacManus, Alice Holdridge MacManus and John R. MacManus agree, and do hereby indemnify the said Detroit Trust Company, as Trustee, from any and all liability in connection therewith.”
On December 29, 1937, Theodora MacManus, then Theodora MacManus Toluboff, assigned all of her interest in the trust estate to her sister and two brothers, and thereafter filed a gift tax return covering such transfer and paid a gift tax thereon in the amount of $1,970.59. No claim for refund of this tax was ever filed and no refund has been made.
Between June 1, 1935 and October 1, 1938, John R. MacManus, as trustee, purchased with trust funds certain annuity contracts based on the life of Theodore F. MacManus. In connection with these purchases, Theodore F. MacManus wrote the New York Life Insurance Company that John R. MacManus was in full control of the trust estate and “I have no interest in said trust, but for the purpose of complying with your request, the application of the said John R. MacManus for said annuity has my full approval, * * * ” He also wrote to the Equitable Life Assurance Company of the United States— “I hereby state that if I be deemed to have any interest in the trust of May 9, 1934, the purchase of a contract of annuity on my life meets with my approval, * * * I expressly affirm, however, that I have no [700]*700interest whatsoever in said trust of May 9, 1934.” ■ ■ i
Theodore F. MacManus died on September 12, 1940. The Tax Court held that the decedent had retained the right and' power to change the beneficiaries of the trust, which brought the case within the language of § 811(c) of the Internal Revenue Code, 26 U.S.C.A. § 811(c), and rendered the trust corpus subject to the estate tax. The petitioner contends that the declaration of trust made by John R. MacManus on May 9, 1934 constituted a new trust wholly indépendent of the original trusts, that the original trusts were wiped out together with the powers reserved therein to the decedent, and that the new instrument eliminated all interests, rights and powers of the decedent in 'the trust corpus held by John R. MacManus.
We are of the opinion.that the ruling in this casé is controlled by the prior decision of this Court in MacManus v. Commissioner, 6 Cir., 131 F.2d 670, 673. In that case we construed the same trusts set up by the instruments of July 18, 1923^ December 30, 1924, May 9, 1934 and May 10, 1934 and, with respect' to the income tax question involved in that case, held that the four separate and independent trusts originally set up by Theodoré F. MacManus had not become merged into a single trust with multiple beneficiaries, but continued to exist as separate, trusts with a change from the Detroit Trust Company as trustee to John R. MacManus trustee..
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MILLER, Circuit Judge.
Petitioner seeks a review of the decision of the Tax Court ordering a deficiency assessment in estate tax in the amount of $59,143.85 against the Estate of Theodore F. MacManus, deceased. 8 T.C. 330. The issue involved is whether the grantor of four trusts for the benefit of his four children retained the power to change the beneficiaries so that the value of the corpus of each of the trusts should be included in the gross estate of the grantor for purposes of the Federal estate tax. The Tax Court ruled in the affirmative.
The material facts presenting the issue may be summarized as follows: On July 18, 1923, Theodore F. MacManus created six revocable trusts, one for each of his six children. The trusts were identical in form except that a different child was named as beneficiary. The Detroit Trust Company was the trustee in all trusts. On December 30, 1924, the grantor executed an amendment to each of the trusts surrendering to the trustee all right of revocation under the instruments of July 18, 1923. However, he reserved to himself the power to designate as beneficiaries, in place of the named beneficiaries, any person bearing a certain relationship to the named beneficiary. Two of the six beneficiaries died in 1930 and 1932, and the assets of the two trusts created for their benefit were distributed under the terms of the trusts to their heirs at law.
In 1930, the grantor became dissatisfied with the Detroit Trust Company as trustee. Following numerous conferences between the grantor, his son John R. MacManus, other members of the family, and his attorney, the grantor on April 20, 1934, wrote to his son John R. MacManus that for the purpose of protecting the interest of the beneficiaries and to rehabilitate the four trusts it seemed advisable to eliminate the Trust Company, which could [699]*699be done by changing the beneficiary provisions from the three other children to John who would then act as sole trustee.
On May 9, 1934, John R. MacManus executed a declaration of trust which referred to the four original trust agreements of July 18, 1923; stated that the grantor had indicated that under the powers reserved to him in said trusts and amendments he was making John R. MacManus the sole beneficiary in each of the four trusts’ and that the purpose of so changing the beneficiaries was to facilitate a termination thereof by unanimous consent of all the parties in interest so that the trusts could be continued in a broader form to the end that if possible said trusts might be rehabilitated with John R. MacManus supplanting the Detroit Trust Company as trustee; and which acknowledged, pursuant to a common understanding with all the parties in interest, “that I shall hold all of the corpus and income of said trusts as Trustee for Theodora MacManus, Alice M. MacManus (now Alice M. Fox), Edwin Benedict MacManus and John R. MacManus, share and share alike.” On May 10, 1934, Theodore F. MacManus executed an amendment to the three trusts for Theodora, Alice and Edwin Benedict, changing the beneficiary therein to John R. MacManus.
Under date of May 11, 1934, John R. MacManus as beneficiary, Theodore F. MacManus as maker, together with his wife, and the Detroit Trust Company as trustee, executed an instrument styled “Release and Consent to Transfer Corpus of Trust Estate and Discharge of Trustee’s Obligations” which referred to the original trusts, the amendments of December -30, 1924, and May 10, 1934, the decision of the parties in interest that the corpus of the trust estate as held by the Detroit Trust Company as trustee should be transferred to John R. MacManus and all of the duties and responsibilities of the Detroit Trust Company as trustee should cease and terminate, and by which John R. MacManus, Theodore F. MacManus and his wife, being all of the parties having a present interest in the corpus of the trust estate, acknowledged the receipt and delivery of all the property and assets constituting the corpus of the trust estate and the income thereon. The closing paragraph stated that it was agreed that the Detroit Trust Company as trustee was thereby discharged and released from any and all obligation of every nature growing out of the trust agreements and amendments thereto, and that all of the rights, powers, benefits and interest in the trust estate “shall be and hereby are transferred and assigned to John R. MacManus, and in all respects, insofar as the Detroit Trust Company as Trustee is concerned, said agreements and /or supplements, and/or all right, title, interest, obligation, responsibility and liability with respect thereto and/or the corpus of the Trust Estate covered thereby, including all accumulations thereto, shall hereby cease and terminate, and the said Theodore F. MacManus, Alice Holdridge MacManus and John R. MacManus agree, and do hereby indemnify the said Detroit Trust Company, as Trustee, from any and all liability in connection therewith.”
On December 29, 1937, Theodora MacManus, then Theodora MacManus Toluboff, assigned all of her interest in the trust estate to her sister and two brothers, and thereafter filed a gift tax return covering such transfer and paid a gift tax thereon in the amount of $1,970.59. No claim for refund of this tax was ever filed and no refund has been made.
Between June 1, 1935 and October 1, 1938, John R. MacManus, as trustee, purchased with trust funds certain annuity contracts based on the life of Theodore F. MacManus. In connection with these purchases, Theodore F. MacManus wrote the New York Life Insurance Company that John R. MacManus was in full control of the trust estate and “I have no interest in said trust, but for the purpose of complying with your request, the application of the said John R. MacManus for said annuity has my full approval, * * * ” He also wrote to the Equitable Life Assurance Company of the United States— “I hereby state that if I be deemed to have any interest in the trust of May 9, 1934, the purchase of a contract of annuity on my life meets with my approval, * * * I expressly affirm, however, that I have no [700]*700interest whatsoever in said trust of May 9, 1934.” ■ ■ i
Theodore F. MacManus died on September 12, 1940. The Tax Court held that the decedent had retained the right and' power to change the beneficiaries of the trust, which brought the case within the language of § 811(c) of the Internal Revenue Code, 26 U.S.C.A. § 811(c), and rendered the trust corpus subject to the estate tax. The petitioner contends that the declaration of trust made by John R. MacManus on May 9, 1934 constituted a new trust wholly indépendent of the original trusts, that the original trusts were wiped out together with the powers reserved therein to the decedent, and that the new instrument eliminated all interests, rights and powers of the decedent in 'the trust corpus held by John R. MacManus.
We are of the opinion.that the ruling in this casé is controlled by the prior decision of this Court in MacManus v. Commissioner, 6 Cir., 131 F.2d 670, 673. In that case we construed the same trusts set up by the instruments of July 18, 1923^ December 30, 1924, May 9, 1934 and May 10, 1934 and, with respect' to the income tax question involved in that case, held that the four separate and independent trusts originally set up by Theodoré F. MacManus had not become merged into a single trust with multiple beneficiaries, but continued to exist as separate, trusts with a change from the Detroit Trust Company as trustee to John R. MacManus trustee.. The reasons which led us to, that conclusion are fully stated in the opinion in that case and need not be restated here. We adhere to that ruling. We agree with jpetitioner that that decision is not res judicata of the present controversy, in that the issues are not the same and because certain additional facts bearing on the different issue herein involved are presented and must be considered. But our construction of the legal effect upon the trusts .created and affected by the four instruments referred to, regardless of the phase of taxation which may be under consideration in any given controversy, is controlling and should be followed. In that opinion- it is stated that the grantor’s letter to his son John indicated “his sole purpose to bé a change of trustee because .of his dissatisfaction with the results obtained by the Trust Company,” and, in the closing paragraphs it is again stated — “It thus will be seen that in the declaration of the trustee there is a clear recognition of the purpose of Theodore F. MacManus to continue , the existing trusts with but one change, and that in the name of the trustee, and that the predominant thought throughout the instrument is that -there are four trusts and not one.” If the change in • the trustee was the sole change intended by the grantor, it follows that the reservation of power in the grantor to change the beneficiaries which existed in the original trusts continued to exist in the same trusts after the change of trustee made effective by the instruments of May 9 and May 10, 1934.
Petitioner contends that this result does not follow because Theodore F. MacManus released .those reserved powers by the instrument which he, his wife, John R. MacManus and the Detroit Trust Company executed under date of May 11, 1934, briefly summarized hereinabove. We do not construe that instrument, as having that effect. Its caption indicates that insofar as the grantor was concerned it was-merely his consent to a transfer of the corpus of the trust estates from one trustee to another and a release of the first trustee’s obligations. The wording of the instrument clearly indicates the sole purpose of making such a transfer and of releasing the Detroit Trust Company of any and all liability with which it might be charged by reason of its acts as said trustee. The closing sentence contains an indemnifying agreement. There is no reference to any release of powers previously reserved in the trusts to the grantor. If it was the purpose of the parties thereto to release such' reserved rights, it would certainly have been so stated in express terms and not left to inference or construction. -
Petitioner also contends that the letters which Theodore F-. MacManus wrote to the two insurance companies in connection. with the- purchase of annuity contracts on his life show that he had no reserved powers in the trust estates. In both [701]*701instances lie wrote that he had no interest in the trust. We do not give to those letters the broad effect attributed to them by petitioner. We agree with the view taken by the Tax Court that the decedent’s alleged disclaimer of any “interest” in the May 9, 1934 trust could well apply to his pecuniary interest rather than to any reserved rights and powers to change the beneficiaries, and that a layman might so express himself without taking into consideration such reserved powers. In any event, his opinion or conclusion in the matter does not control the legal effect of instruments previously executed.
Petitioner further contends that the assignment by Theodora MacManus Toluboff on December 29, 1937 of her interest in the trust estate to her sister and brothers with the payment of a gift tax thereon also demonstrates that the grantor retained no right to change the beneficiaries, for the reason that if such right was still reserved the change from Mrs. Toluboff to her sister and brothers could have been made by the grantor without the necessity of paying a gift tax. This, however, is doubtful. Such a change might have been a taxable transaction. The application of the gift tax statute was in considerable doubt in 1937. Compare Estate of Sanford v. Commissioner, 308 U.S. 39, 60 S.Ct. 51, 84 L.Ed 20. Nor do we know what other factors or circumstances may have influenced this course of action rather than the other. Also, as stated before, the construction which these parties gave to the instruments of May 9 and 10, 1934, does not control their legal effect. The acceptance of the gift tax by the Commissioner does not estop him from thereafter making a valid claim for estate taxes on another person’s estate. Guaranty Trust Co. v. Commissioner, 2 Cir., 98 F.2d 62. See also: Smith v. Shaughnessy, 318 U.S. 176, 63 S.Ct. 545, 87 L.Ed. 690; Higgins v. Commissioner, 1 Cir., 129 F.2d 237, 239.
We do not find any reversible error in the exclusion of testimony of Godfrey Hammel relating to the grantor’s opinion of his rights in the trusts. Although the question, as revised, was' properly worded, yet the answer seems to be in the form of a conclusion of the witness, and, if so, was properly excluded. If it was meant to be an exact statement of what the grantor had said, that fact should have been more clearly shown by additional questions. In any event, such testimony appears cumulative.
The ruling of the Tax Court is affirmed.