[605]*605OPINION.
Aiujndell :
The parties are agreed that the basis for computation of gain on the sale of the Columbia Gas & Electric common stock is the “fair market value of the property at the time of the distribution to the taxpayer.” Sec. 113 (a)(5), Kevenue Act of 1928. Their dispute is as to the “time of distribution.” The respondent says it was March 26, 1930, when the order of partial distribution was obtained, on which date the stock was worth $97"⅞ per share; the petitioner says it was March 31, 1930, when it was endorsed over to Mrs. Taft as trustee, when it was worth $102⅞ per share.
Distribution means the separation or segregation from the corpus of the estate so that the property distributed no longer forms any part of the estate. Willcuts v. Ordway, 19 Fed. (2d) 917. There have been before us several cases with facts similar to this one. In Arthur E. Brawn, Trustee, 29 B. T. A. 1161, the Orphans’ Court of Pennsylvania directed a partial distribution unless exceptions were filed within ten days or an appeal taken within three weeks. We held that the time of distribution was not the date of the decree, but three weeks later, when the appeal period expired. In William R. Huntley, 30 B. T. A. 931, the decree directing distribution was issued by the surrogate of a New York court on May 22,1929, and the transfers of stock certificates were made on June 20, 1929. We there held the earlier date, May 22,1929, to be “the effective date of the decree of distribution” and the basic date for determining gain or loss. In Emmia R. Davis, 32 B. T. A. 943, a probate court in Missouri entered an order on March 26, 1927, directing distribution of an estate including certain stock. The corporation whose stock was involved refused to make the transfer until certain state tax matters were settled and the transfer was not actually made until June 29, 1928. We held the decree of the probate court “effected a distribution of the stock” and that the date of the decree was the basic date for gain or loss purposes. In Harwood Robbins, 33 B. T. A. 880, in a suit in a common pleas court in Ohio to quiet title, it was held that the taxpayer became the “owner absolutely and in fee simple” of shares of stock in trust on September 23, 1928, the date of death of the grandson of the testatrix. The decree was entered on November 23, 1929, and thereafter the property, or the proceeds of that which had been sold, was distributed to the taxpayer. We held the basic date to be November 23, 1929, saying:
The phrase “the time of the distribution” as used in the 1928 Act must necessarily relate to the time at which the property is actually delivered to [606]*606or made available for the use of the distributee or someone acting for him by the executors, administrators, or others having lawful possession or control thereof. See Haskell v. Commissioner (C. C. A., 3rd Cir.), 78 Fed. (2) 869; certiorari denied, - U. S. -, December 16, 1935. Otherwise, it is difficult to see how any effect could be given to the change enacted in the 1928 Act. This time may occur immediately upon the death of the prior owner or at some later date during the process of administration of the estate. Brewster v. Gage, 280 U. S. 327. It is a question to be determined from the facts in each case.
The question here is whether, under the rule of the above cases, the probate decree or the endorsement of the certificates over to the trustee effected a “separation or segregation” of the shares from the estate (Willcuts v. Ordway, supra) and made them “available for the use of the distributee” (Harwood Robbins, supra). We are of the opinion that the decree of the Ohio probate court did not in and of itself effect a distribution of the property. Probate courts in some jurisdictions have plenary powers over estates o,f decedents and may determine fully all matters connected with administration of decedents’ estates. Thus the surrogates’ courts in New York have jurisdiction “to enforce the payment of debts and legacies; the distribution of estates of decedents; and the payment or delivery, by executors, * * * of money or other property * * * belonging to the estate * * Sec. 40, New York Surrogate’s Court Act; sec. 2510, Bliss’ New York Code. In California the rights of a distributee “are fully adjudicated by the decree of distribution.” St. Mary's Hospital v. Perry, 152 Cal. 338; 92 Pac. 864. But in Ohio the probate courts have very limited powers in the matter of directing the distribution of estates. Section 10840, Page’s Annotated Code of Ohio, under which Mrs. Taft acted in securing the order of March 26, provides that, after an executor has paid all debts and claims or set aside sufficient funds for their payment to the satisfaction of the court:
* * * he may distribute and pay over in cash, or in kind, all or any part of tbe assets in his hands * * * to such of the distributees, including * * * trustees * * ⅜ as are willing to receive them.
The petitioner stresses the merely permissive — as distinguished from mandatory — character of the distribution which may be authorized under this section, and in this he is fully supported by Ohio decisions. Moreover, the only valid order of distribution that may be issued by the probate court is general in character, and the court has no power to designate the distributees. In Armstrong v. Grandin, 39 Ohio St. 368, it was held:
It has been settled in Swearingen v. Morris, 14 O. S. 132, and Cox v. Johns, 32 O. S. 532, that the only order of distribution here authorized to be made is a general order to the executor or administrator to distribute the funds remaining in his hands according to law. It thus appears that an order [607]*607designating or naming the distributees is not authorized by law, and therefore would not disbar any one interested in the distribution from asserting his or her interest thereon.
Similarly, in First National Bank of Cadiz v. Beebe, 62 Ohio St. 41; 56 N. E. 485, it was said:
But it is to be specially noted that the only power here given with respect to the distribution of estates is to order distribution. This does not mean that the Probate Court may find and direct the persons to whom distribution is to be made, and the amounts to each, but means simply that, as a result of the settlement of accounts of executors and administrators, and as a step necessary to a final distribution of the trust fund, a general order of distribution is to be made. The rights of the parties where there is conflict, are to be worked out in other tribunals, and by process and pleadings adapted to that end.
In Henry v. Doyle, 82 Ohio St. 113; 91 N. E. 990, it was held:
A general -finding of a balance in the hands of an executor or administrator, and an order to distribute it according to law, does not determine either the persons entitled under the law, nor the amount to which each is entitled.
The views of the Ohio Supreme Court were followed by the Federal District Court in Brown v. Routzahn, 58 Fed. (2d) 329 (reversed 63 Fed. (2d) 914, without discussion of this point) in the following language:
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[605]*605OPINION.
Aiujndell :
The parties are agreed that the basis for computation of gain on the sale of the Columbia Gas & Electric common stock is the “fair market value of the property at the time of the distribution to the taxpayer.” Sec. 113 (a)(5), Kevenue Act of 1928. Their dispute is as to the “time of distribution.” The respondent says it was March 26, 1930, when the order of partial distribution was obtained, on which date the stock was worth $97"⅞ per share; the petitioner says it was March 31, 1930, when it was endorsed over to Mrs. Taft as trustee, when it was worth $102⅞ per share.
Distribution means the separation or segregation from the corpus of the estate so that the property distributed no longer forms any part of the estate. Willcuts v. Ordway, 19 Fed. (2d) 917. There have been before us several cases with facts similar to this one. In Arthur E. Brawn, Trustee, 29 B. T. A. 1161, the Orphans’ Court of Pennsylvania directed a partial distribution unless exceptions were filed within ten days or an appeal taken within three weeks. We held that the time of distribution was not the date of the decree, but three weeks later, when the appeal period expired. In William R. Huntley, 30 B. T. A. 931, the decree directing distribution was issued by the surrogate of a New York court on May 22,1929, and the transfers of stock certificates were made on June 20, 1929. We there held the earlier date, May 22,1929, to be “the effective date of the decree of distribution” and the basic date for determining gain or loss. In Emmia R. Davis, 32 B. T. A. 943, a probate court in Missouri entered an order on March 26, 1927, directing distribution of an estate including certain stock. The corporation whose stock was involved refused to make the transfer until certain state tax matters were settled and the transfer was not actually made until June 29, 1928. We held the decree of the probate court “effected a distribution of the stock” and that the date of the decree was the basic date for gain or loss purposes. In Harwood Robbins, 33 B. T. A. 880, in a suit in a common pleas court in Ohio to quiet title, it was held that the taxpayer became the “owner absolutely and in fee simple” of shares of stock in trust on September 23, 1928, the date of death of the grandson of the testatrix. The decree was entered on November 23, 1929, and thereafter the property, or the proceeds of that which had been sold, was distributed to the taxpayer. We held the basic date to be November 23, 1929, saying:
The phrase “the time of the distribution” as used in the 1928 Act must necessarily relate to the time at which the property is actually delivered to [606]*606or made available for the use of the distributee or someone acting for him by the executors, administrators, or others having lawful possession or control thereof. See Haskell v. Commissioner (C. C. A., 3rd Cir.), 78 Fed. (2) 869; certiorari denied, - U. S. -, December 16, 1935. Otherwise, it is difficult to see how any effect could be given to the change enacted in the 1928 Act. This time may occur immediately upon the death of the prior owner or at some later date during the process of administration of the estate. Brewster v. Gage, 280 U. S. 327. It is a question to be determined from the facts in each case.
The question here is whether, under the rule of the above cases, the probate decree or the endorsement of the certificates over to the trustee effected a “separation or segregation” of the shares from the estate (Willcuts v. Ordway, supra) and made them “available for the use of the distributee” (Harwood Robbins, supra). We are of the opinion that the decree of the Ohio probate court did not in and of itself effect a distribution of the property. Probate courts in some jurisdictions have plenary powers over estates o,f decedents and may determine fully all matters connected with administration of decedents’ estates. Thus the surrogates’ courts in New York have jurisdiction “to enforce the payment of debts and legacies; the distribution of estates of decedents; and the payment or delivery, by executors, * * * of money or other property * * * belonging to the estate * * Sec. 40, New York Surrogate’s Court Act; sec. 2510, Bliss’ New York Code. In California the rights of a distributee “are fully adjudicated by the decree of distribution.” St. Mary's Hospital v. Perry, 152 Cal. 338; 92 Pac. 864. But in Ohio the probate courts have very limited powers in the matter of directing the distribution of estates. Section 10840, Page’s Annotated Code of Ohio, under which Mrs. Taft acted in securing the order of March 26, provides that, after an executor has paid all debts and claims or set aside sufficient funds for their payment to the satisfaction of the court:
* * * he may distribute and pay over in cash, or in kind, all or any part of tbe assets in his hands * * * to such of the distributees, including * * * trustees * * ⅜ as are willing to receive them.
The petitioner stresses the merely permissive — as distinguished from mandatory — character of the distribution which may be authorized under this section, and in this he is fully supported by Ohio decisions. Moreover, the only valid order of distribution that may be issued by the probate court is general in character, and the court has no power to designate the distributees. In Armstrong v. Grandin, 39 Ohio St. 368, it was held:
It has been settled in Swearingen v. Morris, 14 O. S. 132, and Cox v. Johns, 32 O. S. 532, that the only order of distribution here authorized to be made is a general order to the executor or administrator to distribute the funds remaining in his hands according to law. It thus appears that an order [607]*607designating or naming the distributees is not authorized by law, and therefore would not disbar any one interested in the distribution from asserting his or her interest thereon.
Similarly, in First National Bank of Cadiz v. Beebe, 62 Ohio St. 41; 56 N. E. 485, it was said:
But it is to be specially noted that the only power here given with respect to the distribution of estates is to order distribution. This does not mean that the Probate Court may find and direct the persons to whom distribution is to be made, and the amounts to each, but means simply that, as a result of the settlement of accounts of executors and administrators, and as a step necessary to a final distribution of the trust fund, a general order of distribution is to be made. The rights of the parties where there is conflict, are to be worked out in other tribunals, and by process and pleadings adapted to that end.
In Henry v. Doyle, 82 Ohio St. 113; 91 N. E. 990, it was held:
A general -finding of a balance in the hands of an executor or administrator, and an order to distribute it according to law, does not determine either the persons entitled under the law, nor the amount to which each is entitled.
The views of the Ohio Supreme Court were followed by the Federal District Court in Brown v. Routzahn, 58 Fed. (2d) 329 (reversed 63 Fed. (2d) 914, without discussion of this point) in the following language:
In Ohio the power of a probate court is exhausted in making an order of distribution, and the court has no authority to determine the persons who will receive the assets or the amount to be paid to each. Gen. Code, § 10492 (3) ; First Nat. Bank of Cadiz v. Beebe, 62 Ohio St. 41, 56 N. E. 485; Swearingen v. Morris, 14 Ohio St. 424; Cox v. John, 32 Ohio St. 532; Armstrong v. Grandin, 39 Ohio St. 368.
The presence of the testamentary trustees did not enlarge the court’s jurisdiction. In administering the distribution statute, a probate court assumes no responsibility and makes no finding that those whose assent the executor has procured or proposes to procure are in fact entitled to the estate.
In view of the above, it would seem that the order of March 26 did not effect a segregation of the shares of stock and was not a distribution within the meaning of the taxing statute.
The executrix, at the time of the court order and for several days thereafter, had the property in her possession and under her control, as executrix, with the right to make distribution. When she decided to distribute to herself as trustee the decision was made with full knowledge of the several steps necessary to complete the transfer so as to put the property in condition to be salable by the trustee. Sale by the trustee before April 13, 1930, was the object in view. As the executrix was aware of the necessity of compliance with formal preliminaries before the property could be sold, it can not be said that she intended to distribute before compliance. The several steps necessary to meet the requirements for sale by the trustee, including permission of the probate court to make partial distribu[608]*608tion, procuring certified copies of documents authorizing her acts, and a tax release by the State Tax Commission, were all taken by the executrix with due dispatch, as set out in the findings of fact.
Bearing in mind the purpose of the distribution, and the fact of the executrix and trustee being the same person and that she was aware of the formalities to be complied with before her object could be accomplished, we are of the opinion that it was not until March 31, 1930, that there was any segregation of the stock from the corpus of the estate. On that date, and not before, the requirements of the situation had been met and the certificates were taken over by the trustee in that capacity, and that date we hold is the time of the distribution.
Reviewed by the Board.
Decision will be entered under Rule 50.