LEWIS, Circuit Judge.
A. W. Shulthis of Independence, Kansas, died December 29, 1923, leaving a large estate. For the purpose of ascertaining the federal estate tax, his administrators filed with the collector March 12, 1924, the required statement showing the value of the gross estate and the deductions therefrom. The value of certain municipal bonds then held by the Citizens’-First National Bank of Independence, Kansas, was included in the gross estate, and an amount necessary to he paid by Shulthis to the bank to recover those bonds was deducted from the gross estate, the latter amount being in excess of the fair market value of said bonds in the sum of approximately $189,000.00. The Commissioner struck out both items which resulted in his order of a deficiency in the tax to the amount of approximately $23,000.00. The Board of Tax Appeals sustained the action of the Commissioner, and the administrators come here with a petition to review the action of the Board.
Section 402 of the Revenue Act of November 23,1921 (42 Stat. 227, 278), provides-that value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property of every kind to the extent of the interest of the decedent therein, and the following section provides for deducting from the value of the gross estate certain items for the purpose of ascertaining its net taxable value. One of the items thus named is “claims against the estate, * * * as are allowed by the laws of the jurisdiction. * * * ”
The issue is whether the amount necessary to be paid by Shulthis to.the bank to recover the bonds was a claim against his estate under the laws of Kansas. There is no dispute as to the amount of that item, nor as to the fair reasonable value of said bonds at the time of the death of Mr. Shulthis, which was included in the value of the gross estate in said return. If said bonds were the property of Shulthis at the time of his death they were correctly included in his gross estate, and if the amount required to recover them, which was later paid to the bank for that purpose by the administrators under probate order, was an allowable claim against his estate, that amount was properly deducted from the gross estate in ascertaining its net value for the purpose of the tax.
We must, therefore, inquire whether the bonds were the property of Shulthis at his death. He was president and director of the bank. He was the principal owner and controlled the business policy of three brick companies and a cement company. He was a member of a partnership which did contract work and used brick and cement for paving and other purposes. Other contractors who did like work also used brick and cement made by the companies in which Shulthis was interested. These municipal bonds of the face value of more than $400,000.00 were issued by towns and cities in payment for improvements made of the kind just indicated. [989]*989Shulthis took them to the hank about two years prior to his death. He handed them to the auditor of the bank, told him to enter them on the books as bank assets and to give credit for their face value as he then directed. The auditor complied. When other officers of the bank soon thereafter heard of the transaction, they disapproved. Shulthis replied that he was behind everything he put in the bank and that if they did not like his methods he would resign. The board of directors objected. It never gave its approval. The bank examiner criticized the transaction shortly before Shulthis’ death, and he told the board of directors and the examiner he would take up the bonds with his private funds. On several previous occasions he made like stateménts to the board.
In short on the facts of record it appears. that Shulthis treated the municipal bonds as his private property when he took them, to the bank. They were issued for improvements that had been made, and he plainly was using them to raise the cash necessary to pay for the material and labor. No one else has ever claimed, so far as the reeord shows, to be the owner of the bonds or disputed Shulthis’ ownership'. So, the inference that Shulthis was the owner when he took them to the bank, left them there and had the auditor enter them as bank assets and give corresponding credits as he directed seems to unavoidably follow. Unless the transaction, just stated, between Shulthis and the bank’s auditor constituted a sale and purchase of the bonds, they were a part of his estate at the time of his death. There has been no claim that anything was said by Shulthis or the bank’s auditor about a sale and purchase, nor by the directors or other officers of the bank when thé transaction later came to their attention. Their position throughout was that Shulthis had improperly and without authority and their consent put the bonds in the bank and gotten bank’s funds on them, and he should take them out which he repeatedly thereafter promised to do. Of course, that meant that Shulthis must reimburse the bank in the transaction he had with the auditor. There was no proof that the auditor had authority to purchase the bonds for the bank. That Shulthis did not intend a sale of the securities to the bank seems clear from his statement made when his attention was at one time directed to the fact that he did not indorse the securities. He gave as his reasons for not doing so that he found it convenient-to use them as collateral at other banking institutions. He was indebted to the bank in a very large amount on promissory notes when he handed the bonds to the auditor, and his evident purpose was to avoid a showing of an increase of that indebtedness on the bank’s bqoks. He dominated -the board of directors and the bank’s other officers and continued to be so indebted until his death.
It is our conclusion that title to the bonds remained in Shulthis, that the bank’s interest in them was only that of a lienor for the amount gotten on them by Shulthis when he left them with the auditor, and that he was debtor therefor, which not being paid, became a claim against his estate “as allowed by the laws of the jurisdiction.”
But if the conclusion just stated is not sustained by the facts — if the transaction with the auditor constituted a sale of the bonds to the bank — then we conclude from what occurred thereafter Shulthis purchased from the bank and the bank sold to him said bonds, and they again became the property of Shulthis and were a part of his estate at his death for which he had not paid the purchase price. As before stated, when the other officers and directors learned of the transaction with the auditor, they protested and demanded that he take the bonds up. He first put them off, said he was back of everything he put in the bank, but later he promised the board of directors that he would take the bonds up with his personal funds. He died shortly thereafter without doing so. This constituted a sale and purchase if the bonds were not then his property. The Statute of Frauds of the state of Kansas, where all these transactions were held, does not include the sale and purchase of chattels, and such transactions, although resting in parol, are there valid. The English statute provided:
“No contract for the sale of any goods, wares, or merchandise for the price of ten pounds sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”
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LEWIS, Circuit Judge.
A. W. Shulthis of Independence, Kansas, died December 29, 1923, leaving a large estate. For the purpose of ascertaining the federal estate tax, his administrators filed with the collector March 12, 1924, the required statement showing the value of the gross estate and the deductions therefrom. The value of certain municipal bonds then held by the Citizens’-First National Bank of Independence, Kansas, was included in the gross estate, and an amount necessary to he paid by Shulthis to the bank to recover those bonds was deducted from the gross estate, the latter amount being in excess of the fair market value of said bonds in the sum of approximately $189,000.00. The Commissioner struck out both items which resulted in his order of a deficiency in the tax to the amount of approximately $23,000.00. The Board of Tax Appeals sustained the action of the Commissioner, and the administrators come here with a petition to review the action of the Board.
Section 402 of the Revenue Act of November 23,1921 (42 Stat. 227, 278), provides-that value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property of every kind to the extent of the interest of the decedent therein, and the following section provides for deducting from the value of the gross estate certain items for the purpose of ascertaining its net taxable value. One of the items thus named is “claims against the estate, * * * as are allowed by the laws of the jurisdiction. * * * ”
The issue is whether the amount necessary to be paid by Shulthis to.the bank to recover the bonds was a claim against his estate under the laws of Kansas. There is no dispute as to the amount of that item, nor as to the fair reasonable value of said bonds at the time of the death of Mr. Shulthis, which was included in the value of the gross estate in said return. If said bonds were the property of Shulthis at the time of his death they were correctly included in his gross estate, and if the amount required to recover them, which was later paid to the bank for that purpose by the administrators under probate order, was an allowable claim against his estate, that amount was properly deducted from the gross estate in ascertaining its net value for the purpose of the tax.
We must, therefore, inquire whether the bonds were the property of Shulthis at his death. He was president and director of the bank. He was the principal owner and controlled the business policy of three brick companies and a cement company. He was a member of a partnership which did contract work and used brick and cement for paving and other purposes. Other contractors who did like work also used brick and cement made by the companies in which Shulthis was interested. These municipal bonds of the face value of more than $400,000.00 were issued by towns and cities in payment for improvements made of the kind just indicated. [989]*989Shulthis took them to the hank about two years prior to his death. He handed them to the auditor of the bank, told him to enter them on the books as bank assets and to give credit for their face value as he then directed. The auditor complied. When other officers of the bank soon thereafter heard of the transaction, they disapproved. Shulthis replied that he was behind everything he put in the bank and that if they did not like his methods he would resign. The board of directors objected. It never gave its approval. The bank examiner criticized the transaction shortly before Shulthis’ death, and he told the board of directors and the examiner he would take up the bonds with his private funds. On several previous occasions he made like stateménts to the board.
In short on the facts of record it appears. that Shulthis treated the municipal bonds as his private property when he took them, to the bank. They were issued for improvements that had been made, and he plainly was using them to raise the cash necessary to pay for the material and labor. No one else has ever claimed, so far as the reeord shows, to be the owner of the bonds or disputed Shulthis’ ownership'. So, the inference that Shulthis was the owner when he took them to the bank, left them there and had the auditor enter them as bank assets and give corresponding credits as he directed seems to unavoidably follow. Unless the transaction, just stated, between Shulthis and the bank’s auditor constituted a sale and purchase of the bonds, they were a part of his estate at the time of his death. There has been no claim that anything was said by Shulthis or the bank’s auditor about a sale and purchase, nor by the directors or other officers of the bank when thé transaction later came to their attention. Their position throughout was that Shulthis had improperly and without authority and their consent put the bonds in the bank and gotten bank’s funds on them, and he should take them out which he repeatedly thereafter promised to do. Of course, that meant that Shulthis must reimburse the bank in the transaction he had with the auditor. There was no proof that the auditor had authority to purchase the bonds for the bank. That Shulthis did not intend a sale of the securities to the bank seems clear from his statement made when his attention was at one time directed to the fact that he did not indorse the securities. He gave as his reasons for not doing so that he found it convenient-to use them as collateral at other banking institutions. He was indebted to the bank in a very large amount on promissory notes when he handed the bonds to the auditor, and his evident purpose was to avoid a showing of an increase of that indebtedness on the bank’s bqoks. He dominated -the board of directors and the bank’s other officers and continued to be so indebted until his death.
It is our conclusion that title to the bonds remained in Shulthis, that the bank’s interest in them was only that of a lienor for the amount gotten on them by Shulthis when he left them with the auditor, and that he was debtor therefor, which not being paid, became a claim against his estate “as allowed by the laws of the jurisdiction.”
But if the conclusion just stated is not sustained by the facts — if the transaction with the auditor constituted a sale of the bonds to the bank — then we conclude from what occurred thereafter Shulthis purchased from the bank and the bank sold to him said bonds, and they again became the property of Shulthis and were a part of his estate at his death for which he had not paid the purchase price. As before stated, when the other officers and directors learned of the transaction with the auditor, they protested and demanded that he take the bonds up. He first put them off, said he was back of everything he put in the bank, but later he promised the board of directors that he would take the bonds up with his personal funds. He died shortly thereafter without doing so. This constituted a sale and purchase if the bonds were not then his property. The Statute of Frauds of the state of Kansas, where all these transactions were held, does not include the sale and purchase of chattels, and such transactions, although resting in parol, are there valid. The English statute provided:
“No contract for the sale of any goods, wares, or merchandise for the price of ten pounds sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”
Many of the states have a like statute, but Kansas has omitted this from its Statute of Frauds.
1 In Leonard v. Davis, 1 Black, 476, 483, 17 L. Ed. 222, the court said:
[990]*990“When the terms of sale axe agreed on, and the bargain is struck, and everything 'the seller has to do with the goods is complete, the contract of sale, says Chancellor Kent, becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vests in the buyer. He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said at the sale as to the time of delivery, or the time of payment. But if the goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of property vests at once in him. 2 Kent’s Com. (9th Ed.) 671; Bradeen v. Brooks, (22 Me. 470); Davis v. Moore, (13 Me. 427).
“Nothing in fact remained to be done in this ease, so far as the sale and purchase were concerned. Defendants bought and plaintiffs sold, without condition or reservation, and the measurement was simply to ascertain the amount to be paid by the defendants. Sellers had nothing to do but receive the agreed price, unless the boom-master refused to act, which contingency did not happen in the case. Cushman v. Holyoke, (34 Me. 292); Riddle v. Varnum, (20 Pick. 280).
“It is clear, therefore, that the title in the logs passed to the defendants at the time the contract was executed. Cunningham v. Ashbrook, (20 Mo. 553); Cole v. Transp. Co., (26 Vt. 87).”
See also, Hatch v. Oil Co., 100 U. S. 124, 25 L. Ed. 554. So, whether we regard the transactions between the board and Shulthis, last noted, as a present sale and purchase or only as an executory contract to sell and purchase, Shulthis was liable to the bank for an amount required to take up the bonds, and after his death that amount constituted a claim against his estate “as allowed by the laws of the jurisdiction.” Revised Stat. of Kansas 1923, c. 22, art. 7.
While the order of the probate court in which the estate was administered has been subjected to criticism as not being in the usual form of an allowance of a claim against an estate, still it is in substance an allowance of the claim of the bank for the money that Shulthis obtained on the bonds when he left them with the bank’s auditor. It directed the administrators to invest the funds of the estate in taking up the bonds, “being certain municipal bonds and obligations held” by the bank, all as set forth in the petition. At the time of Shulthis’ death the bonds had depreciated in value to the extent of $180,000.00. The board of directors and the bank’s officers, except, Shulthis, objected to his putting the bonds in the bank as a means of taking its money. They demanded that he restore what he had gotten and take them out. He promised from time to time to do so, but delayed. He stood in a fiduciary relation to the bank and had imposed on it to its damage. The bank had a claim against him, and in turn against his estate, which it could have enforced. That was the effect of the probate order.
The order of the Board of Tax Appeals is reversed.