JOHNSON, Circuit Judge.
This is an action by the executors of the will of King Upton, who died February 27, 1321, to recover an additional federal estate tax of $37,583.20, claimed to have been illegally assessed and collected by tho defendant from tho plaintiffs as such executors. At the close of the evidence, the judge of the District Court directed a verdict for tho plaintiffs in the full amount sued for, with interest.
The plaintiffs claim that tho Commissioner of Interna,] Revenue included in the gross estate of the decedent, and subject to a federal tax, certain shares of stock of the American Glue Company and of tho National Glue Company alleged to have been given by him in 1918, more than two years prior to his death, to his wife, Annie D. Upton, and to his daughter-in-law, Loma G. Upton. The defendant admitted that the stock given to the daughter-in-law should not have been subjected to a tax, and the sole question before the court was whether the decedent made a valid gift to his wife.
The defendant, at tho close of the testimony, filed a motion for a directed verdict for the plaintiff for $4,050.40, with interest from March 13, 1926, this being the amount of the lax collected on tho stock transferred to the daughter-in-law, and which the defendant admitted was not taxable as a part of the estate. The defendant also requested certain instructions which the court refused to give; to which refusal, and to the denial of his motion for a directed verdict, ho excepted. The plaintiffs also tiled a motion for a directed verdict, and the court directed a verdict for the plaintiffs in the sum of $39,544.78, being the full amount claimed, with interest, to which the defendant excepted. He has assigned as error the direction of a verdict for [838]*838the full sum sued for, and also the failure to give the instructions requested by him, and the overruling of his motion for a directed verdict.
We are met at the outset by the contention that, both parties having moved for a directed verdict, this court is concluded by the finding of the District Court, provided there was any evidence to sustain it. Linsky v. United States (C. C. A.) 6 F.(2d) 869, decided in this circuit, is cited in favor of this contention. It will be noted that the defendant in that, ease went no further than to file a motion for a directed verdict, and did not file any written request for instructions. In its decision in that case the court relied upon Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654, and Williams v. Vreeland, 250 U. S. 295, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038. In Empire State Cattle Co. v. Atchison Railway Co., 210 U. S. 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70, Chief Justice White, who drew the opinion in Beuttell v. Magone, supra, said, at page 8 (28 S. Ct. 609):
“If, on the other hand, it be that, although the plaintiffs had requested a peremptory instruction, the right to go to the jury was not waived in view of the other requested instructions, then our inquiry has a wider scope— that is, extends to determining whether the special instructions asked were rightly refused, either because of their inherent unsoundness or because, in any event, the evidence was not such as would have justified the court in submitting the case to the jury.”
He further said that there was nothing in that case to sustain the view “that a party may not request a peremptory instruction, and yet, upon the refusal of the court to give it, insist, by appropriate requests, upon the submission of the case to the jury, where the evidence is confiieting or the inferences to be drawn from the testimony are divergent. To hold the contrary would unduly extend the doctrine of Beuttell V. Magone, by causing it to embrace a case not within the ruling in that case made.”
He cited with approval the opinion of Circuit Judge Severens in Minahan v. Grand Trunk Western Railway Co. (C. C. A.) 138 F. 37, and also the concurring opinion of Circuit Judge Shelby in McCormick v. National City Bank of Waco (C. C. A.) 142 F. 132, 6 Ann. Cas. 544.
In the present ease the requested instructions were pertinent to the submission to the jury of the question of whether the alleged gift to the wife was a valid and completed one. By filing a motion for a directed verdict for the amount of the tax on the stock transferred to the daughter-in-law, for which he was willing to confess judgment, the defendant did not waive the right to have the question of the validity of the alleged gift to the wife passed upon by the jury. His requested instructions called for a statement of the law to guide the jury in its consideration of the validity of the alleged gift to the wife, and1 it is clear that he intended, in the event his motion for a directed verdict was denied, to ask that these instructions be given to the jury to govern them in their determination of the validity of this gift.
The parties have ■ filed a statement of agreed facts, which was made a part of the bill of exceptions by reference, and with the oral testimony. at the trial constitutes the evidence in the ease.
The question for our determination is whether this evidence, with all the reasonable inferences to be drawn from it, was of such a clear and conclusive character as to justify the presiding judge in, directing a verdict for the plaintiffs, and not submitting to the jury the determination of the validity of the gift to the wife. The facts were undisputed, but it is apparent that divergent inferences might be drawn therefrom. If there were reasonable inferences that might be drawn by the jury from the testimony and the acts of the decedent which would sustain a verdict for the defendant, the validity of the alleged gift should have been submitted to the jury.
In C., M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 564, 566 (70 L. Ed. 1041) the Supreme Court, speaking through Justice.Butler, said: “It is the duty of the trial judge to direct a verdict for one of the parties, when the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding” — citing Baltimore & Ohio Railway Co. v. Groeger, 266 U. S. 521, 524, 45 S. Ct. 169, 69 L. Ed. 419.
We think that the testimony, and the reasonable inferences which the jury might draw therefrom were sufficient to support a verdict in favor of the defendant.
Congress, on October 3, 1917, enacted a new Income Tax Law ,(40 Stat. 300—338), which, in addition to the normal tax of 2 per cent., imposed heavy additional surtaxes upon incomes. The i decedent’s income was largely derived from dividends on the stock of the American Glue Company and the National Glue Company, and amounted in 1917 to $65,724, and in 1918 to $88,000.
[839]*839Some time in September, 1918, he consulted his attorney, who testified that he said that he had in mind giving his wife enough, so that her income would he approximately equal to his, and stated in substance: “I have figured that, if I do that, the family income taxes will be appreciably reduced.”
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JOHNSON, Circuit Judge.
This is an action by the executors of the will of King Upton, who died February 27, 1321, to recover an additional federal estate tax of $37,583.20, claimed to have been illegally assessed and collected by tho defendant from tho plaintiffs as such executors. At the close of the evidence, the judge of the District Court directed a verdict for tho plaintiffs in the full amount sued for, with interest.
The plaintiffs claim that tho Commissioner of Interna,] Revenue included in the gross estate of the decedent, and subject to a federal tax, certain shares of stock of the American Glue Company and of tho National Glue Company alleged to have been given by him in 1918, more than two years prior to his death, to his wife, Annie D. Upton, and to his daughter-in-law, Loma G. Upton. The defendant admitted that the stock given to the daughter-in-law should not have been subjected to a tax, and the sole question before the court was whether the decedent made a valid gift to his wife.
The defendant, at tho close of the testimony, filed a motion for a directed verdict for the plaintiff for $4,050.40, with interest from March 13, 1926, this being the amount of the lax collected on tho stock transferred to the daughter-in-law, and which the defendant admitted was not taxable as a part of the estate. The defendant also requested certain instructions which the court refused to give; to which refusal, and to the denial of his motion for a directed verdict, ho excepted. The plaintiffs also tiled a motion for a directed verdict, and the court directed a verdict for the plaintiffs in the sum of $39,544.78, being the full amount claimed, with interest, to which the defendant excepted. He has assigned as error the direction of a verdict for [838]*838the full sum sued for, and also the failure to give the instructions requested by him, and the overruling of his motion for a directed verdict.
We are met at the outset by the contention that, both parties having moved for a directed verdict, this court is concluded by the finding of the District Court, provided there was any evidence to sustain it. Linsky v. United States (C. C. A.) 6 F.(2d) 869, decided in this circuit, is cited in favor of this contention. It will be noted that the defendant in that, ease went no further than to file a motion for a directed verdict, and did not file any written request for instructions. In its decision in that case the court relied upon Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654, and Williams v. Vreeland, 250 U. S. 295, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038. In Empire State Cattle Co. v. Atchison Railway Co., 210 U. S. 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70, Chief Justice White, who drew the opinion in Beuttell v. Magone, supra, said, at page 8 (28 S. Ct. 609):
“If, on the other hand, it be that, although the plaintiffs had requested a peremptory instruction, the right to go to the jury was not waived in view of the other requested instructions, then our inquiry has a wider scope— that is, extends to determining whether the special instructions asked were rightly refused, either because of their inherent unsoundness or because, in any event, the evidence was not such as would have justified the court in submitting the case to the jury.”
He further said that there was nothing in that case to sustain the view “that a party may not request a peremptory instruction, and yet, upon the refusal of the court to give it, insist, by appropriate requests, upon the submission of the case to the jury, where the evidence is confiieting or the inferences to be drawn from the testimony are divergent. To hold the contrary would unduly extend the doctrine of Beuttell V. Magone, by causing it to embrace a case not within the ruling in that case made.”
He cited with approval the opinion of Circuit Judge Severens in Minahan v. Grand Trunk Western Railway Co. (C. C. A.) 138 F. 37, and also the concurring opinion of Circuit Judge Shelby in McCormick v. National City Bank of Waco (C. C. A.) 142 F. 132, 6 Ann. Cas. 544.
In the present ease the requested instructions were pertinent to the submission to the jury of the question of whether the alleged gift to the wife was a valid and completed one. By filing a motion for a directed verdict for the amount of the tax on the stock transferred to the daughter-in-law, for which he was willing to confess judgment, the defendant did not waive the right to have the question of the validity of the alleged gift to the wife passed upon by the jury. His requested instructions called for a statement of the law to guide the jury in its consideration of the validity of the alleged gift to the wife, and1 it is clear that he intended, in the event his motion for a directed verdict was denied, to ask that these instructions be given to the jury to govern them in their determination of the validity of this gift.
The parties have ■ filed a statement of agreed facts, which was made a part of the bill of exceptions by reference, and with the oral testimony. at the trial constitutes the evidence in the ease.
The question for our determination is whether this evidence, with all the reasonable inferences to be drawn from it, was of such a clear and conclusive character as to justify the presiding judge in, directing a verdict for the plaintiffs, and not submitting to the jury the determination of the validity of the gift to the wife. The facts were undisputed, but it is apparent that divergent inferences might be drawn therefrom. If there were reasonable inferences that might be drawn by the jury from the testimony and the acts of the decedent which would sustain a verdict for the defendant, the validity of the alleged gift should have been submitted to the jury.
In C., M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 564, 566 (70 L. Ed. 1041) the Supreme Court, speaking through Justice.Butler, said: “It is the duty of the trial judge to direct a verdict for one of the parties, when the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding” — citing Baltimore & Ohio Railway Co. v. Groeger, 266 U. S. 521, 524, 45 S. Ct. 169, 69 L. Ed. 419.
We think that the testimony, and the reasonable inferences which the jury might draw therefrom were sufficient to support a verdict in favor of the defendant.
Congress, on October 3, 1917, enacted a new Income Tax Law ,(40 Stat. 300—338), which, in addition to the normal tax of 2 per cent., imposed heavy additional surtaxes upon incomes. The i decedent’s income was largely derived from dividends on the stock of the American Glue Company and the National Glue Company, and amounted in 1917 to $65,724, and in 1918 to $88,000.
[839]*839Some time in September, 1918, he consulted his attorney, who testified that he said that he had in mind giving his wife enough, so that her income would he approximately equal to his, and stated in substance: “I have figured that, if I do that, the family income taxes will be appreciably reduced.”
t Before making any transfer of stock to his wife, the decedent, September 21, 1918, secured from her a general power of attorney, constituting and appointing him her true and lawful attorney, “for me, and in my name, to indorse for deposit or collection cheeks, notes, and other negotiable instruments running to my order; to sign checks or drafts on any bank account that may stand in my name, to sign or indorse stock certificates and negotiate the purchase and sale thereof, hereby granting unto my said attorney full power and authority in my name and behalf to execute, acknowledge, and deliver any instruments in writing which may be necessary and proper in the premises, also to represent me at any meeting of stockholders of any corporation in which I ijiay be a stockholder, and otherwise to act in the premises as fully and effectually as I might do if personally present.”
She also executed, on September 23,1918, a power of attorney to George H. Crowell, secretary, of her husband, empowering him to sign cheeks on the Webster & Atlas Bank account, which was opened in her name after the transfer to her was made.
In a letter to his counsel, written a short time before the transfer, the decedent stated:
“I am anxious to get this matter closed up, as far as the American stock goes, before the 1st of November. Have been spending most of to-day reading the new tax bill as it left the House of Representatives, and there is no question in my mind but that it is imperative for me to do so.”
The jury might have found that he did not intend to part with the dominion and control over the stock which he contemplated transferring to his wife, nor of the dividends to he received thereon, because before he made the transfer he had his wife execute the power of attorney to him, which gave him as full control and dominion over the stock and the dividends to be paid thereon as he had before the transfer. That this inference would not he unreasonable, but justified by the acts of the parties, is supported by the following facts: That the certificates of stock were never delivered to her, but to the secretary of the decedent, who it is claimed acted also as her secretary, who deposited some of them in the security box of the decedent at the State Street Trust Company, to which she had no access, although she testified that they were deposited at the Webster & Atlas National Bank; that about one-half in value was used by the decedent as collateral for loans made by Mm at different banks; that a bank account was opened in her name at the Webster & Atlas National Bank, and a check book containing blank checks on this bank, with her printed - signature thereon and a space beneath it, followed by the word “Attorney,” was left in the custody of the decedent and his secretary; that the decedent drew upon this account to pay off loans due from Mm at other banks, and interest; and that about a week before the decedent’s death she transferred to Mm 3,300 shares of the American Glue Company stoek, wMch was transferred upon the books of the company and stood in his name at his death.
These facts, and others in the record, would, in our opinion, furnish sufficient ground for a reasonable inference to be drawn by the jury that the alleged gift to the wife was hut a sham and a subterfuge, devised solely for the purpose of 'relieving the decedent from the payment of the income tax imposed by the Revenue Act of 1918, and that the decedent had not parted with full dominion and control over the objects of the alleged gift, but by means of the power of attorney which had been executed by his wife was still enabled to retain full control and dominion over the stock transferred, as well as the dividends thereon, and to use the same for Ms own personal benefit as he saw fit.
Whether the alleged gift was a valid and completed one was a question of fact for the jury, and one with which they were peculiarly well fitted to deal, under proper instructions from the court as to the necessity of proving donative intent, delivery, and the release by the decedent of full; control and dominion over the stocks transferred. We think there was error in withdrawing the case from their consideration, and directing a verdict for the plaintiffs.
The judgment of the District Court is vacated, the verdict set 'aside, and the case remanded to that court, with instructions to grant a new trial; the plaintiff in error to recover costs in this court.