On Petitions for Review of Decisions of the United States Board of Tax Appeals.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
These cases are brought to this court at the instance of the Commissioner of Internal Revenue by petitions to review the decisions of the United States Board of Tax Appeals. While the estates of two decedents are involved, that single question, as the cases come to this court, is whether there should be included in the gross estate of each decedent the value at the date of death of property constituting the corpus of a trust created by each decedent prior to his death.*fn1 The controlling statute is the Revenue Act of 1926, Ch. 27, 44 Stat. 9, and the question raised is presented under Section 302.*fn2 The recital of facts, and the discussion. will be confined to those involved in the estate of Francis R. Dravo. The identical issue is raised with respect to the tax upon the estate of Ralph M. Dravo and the conclusion reached with regard to one will necessarily control the other.
Francis R. Dravo of Pittsburgh and his wife, Fanny M. Dravo, executed trusts simultaneously on January 17, 1931. It is found as a fact that one of the controlling purposes for the formation of the trusts was to give the ultimate control in the Dravo Corporation and its constituent companies to the group of men associated with the two Dravo brothers in the development of the business conducted by these concerns.
Mr. Dravo on this date transferred to the trustees shares of stock in various Dravo enterprises and made provision for the ivision of the corpus after the death of his wife, anny M. Dravo. Among other things, Article 2 of the trust provided: "The Trustees may advance portions of the prinicipal hereof to or for the use or benefit of the Creator's said wife, at such times, in such amounts and for such purposes as the said Trustees in their opinion may deem advisable." Fanny M. Dravo simultaneously transferred, to the trustees of hertruse, securities then owned by her which were identical in kind and amount to those transferred by her husband, Francis. Her deed was in all substantial respects the same as taht of her husband except that the relative positions of husband and wife were reversed therein. The trustees were the same in both deeds and were Francis R. Dravo, Ralph M. Dravo, his brother, and the Bank of Pittsburgh National Association. Francis R. Dravo died February 26, 1934.
The government's contention is that the substance of the arrangement as between husband and wife was that the grantor created a trust, the enjoyment of which was at his death subject to change through the exercise of a power to alter, amend or revoke under Section 302(d) and that consequently the value thereof is includable in the gross estate.
Our problem is to appraise the trust instrument against a background of realities to determine whether the grantor retained "the controlling hand over somethin he has seemed to give away." See Fulham v. Commissioner, 1 Cir., 1940, 110 F.2d 916. The issue is of the type, not unfamiliar in the law, where the distinctions are not black and white, but of varying shades of gray and where the shade chosen by a court will seem "realistic" to him whose side wins and artificial or fanciful to the other.
Petitioner contends that the right of the decedent to receive distribution from the corpus of the estate created by his wife was not materially different from a right to revoke a t ransfer (as in Reinecke v. Northern Trust Co., 1929, 278 U.S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A.L.R. 397) or the interest in insurance policies retained by the decedent in Chase National Bank v. United States, 1929, 278 U.S. 327, 49 S. Ct. 126, 73 L. Ed. 405, 63 A.L.R. 388. The Commissioner contends that the principle relied upon was applied by the Circuit Court of Appeals for the Second Circuit in Lehman v. Commissioner, 1940, 109 F.2d 99. In that case the decedent and his brother had simultaneously created separate trusts each giving the other the income for life and the power of invasion of the corpus to the extent of $150,000. The decedent died without having made any withdrawals of principal. It was held that the value of the trust created by the decedent's brother was properly included in the gross estate to the extent of $150,000.
We agree fully with the result reached in the Lehman case. But it is to be noted that there the life beneficiary was given an unqualified power to invade the corpus of the trust created by the brother. Fulham v. Commissionr, 1 Cir., 1940, 110 F.2d 916 has language in the trust deed fairly close to that in the instatant case. But the question there was whether under the income tax statute the power to revest the corpus in the grantor depended on the consent of a person having a substantial adverse interest. In Higgins v. White, 1 Cir., 1937, 93 F.2d 357, 358, also an income tax case, we hvave language permitting the trustees to pay "such sums or sum out of the principal as they shall deem necessary or advisable for the comfort, maintenance, support, advancement, education or welfare" of thebeneficiaries. In that case a husband and wife had each set up a trust, in each instance naming a trust company together with the grantor as trustees. Their issue and one of the spouses were the beneficiaries of each trust. The income of the trust was held not to be taxable to the grantor, the court rejecting the theory that he had the right to revest in himself the title to the corpus. In so far as Higgins v. White is analgous to the problem here it must be admitted that the language of the trust was more favorable to the taxpayer than that used in the trusts here involved, which permitted the trustees to advance portions of the principal to the beneficiary in such amount and for such purposes as the trustees deemed advisable. The purpose for which the principal could be paid out by the trustees in the Higgins case was certainly more limited.
Nevertheless, we believe the contention of the taxpayer here to be well founded. A wide discretion, it is true, was given the trustees. But although a court would not substitute its own discretion for that of the trustees, it would interene to prevent any abuse of discretion by the trustees. See the statement of the rule and the discussion of the various situations in Restatement, Trusts § 187 and comment. Furthermor, the language used by the draftsmen in the trust instrument is not "pay" but "advance". One may not advance without paying or at least crediting. One certainly may pay without advancing in the technical sense. The term "advance" is generally used to refer to payment of amoney before it is due, although it has been held to refer to a loan or even a gift. In re Harrison's Estate, 1930, 298 Pa. 514, 516, 148 A. 704, 705, and see the collection of judicial definitions in 2 Words and Phrases, Perm. Ed. 1940, p. 509 et seq. The Meaning of the term is held, in a particular case, to be determined by the examination of the whold instrument in which the term is used. In re Harrison's Estate, supra; In re Altman's Will, Sur. Ct. 1938, 6 N.Y.S.2d 972.
The instruments in the present case were drawn with some care. In disposing of remainders directions are given in many instances that a share shall be "set apart" or a portion of a share "paid" or income from a share "paid". Directions for setting apart and payment are given in considerable detail. It seems to us that where a document uses such language with such care it is not realistic to slur over such distinctions in use of terms. The Francis R. Dravo trust provided for the payment to his wife during her lifetime of so much of the net income as the trustees should determine. Then follows the provision for the "advance" of portions of the principal. We think that the fair construction of these provisions requires that the term "advance" be limited to its primary meaning of a payment before it is due. The only payments to which the wife was entitled were from income. Any funds turned over to her out of the principal would render her indebted to the trust estate for that amount and constitute a charge upon her interest in the income.
We believe, also, as indicated above, that while the trustees had broad powers they, nevertheless, were required to administer the trust, even with regard to payment of corpus to the wife of the settlor, in accordance with their honest discretion. The case, in other words, seems more like Higgins v. White, supra, than it does like Lehman v. Commissioner, supra. The ...