Pringle v. Commissioner

MARIAN B. PRINGLE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. PHYLLIS B. BRUNSON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Pringle v. Commissioner Docket Nos. 34943, 34944. United States Board of Tax Appeals 26 B.T.A. 362; 1932 BTA LEXIS 1327; June 9, 1932, Promulgated *1327 The testator by her will provided that trustees should hold property in trust, the income to be applied as specified, and at the end of a definitely ascertainable period distribute the property among decedent's living children, share and share alike, the children of such children to receive the parent's share. It was further provided in the will that if all the children should die without issue before the end of the trust period, the trust should terminate and the property should go to others. Held, that when the petitioners herein, children of the decedent, received the property in question at the end of the trust period they received no new right, that their legal title related back to the date of death of the decedent, that the date of death of the decedent was the time of acquisition of the property by them within the meaning of section 202 of the Revenue Act of 1921, and that the value of the property at the date of death of the decedent is the proper basis for the computation of gain derived upon the sale by them of such property. Ralph W. Smith, Esq., for the petitioners. C. H. Curl, Esq., for the respondent. MCMAHON *362 These*1328 are proceedings, duly consolidated for hearing and opinion, for the redetermination of asserted deficiencies in income taxes for the calendar year 1923, the deficiency in each case being the same, to wit, $3,243.85. It is alleged in each petition that the respondent erred (1) in computing the profit on the sale of certain real estate acquired and sold during the year 1923, and (2) in using an erroneous basis for computing gain or loss on the real estate sold during the year 1923 in that the value at the date of the death of the testator was used instead of the value at the date of distribution and acquisition by petitioner as a beneficiary under a trust created by the will of the testator. The evidence presented consists of a stipulation entered into between the parties and certified copies of certain documents which were admitted in evidence. FINDINGS OF FACT. Mrs. Ida Wilcox Beveridge, who will hereinafter be referred to as "the decedent," died on August 7, 1914, and left a will which provided as follows: *363 I. I give, devise and bequeath to my husband, Philo J. Beveridge, and to my sister, Mrs. Madge Connell, all of my property of every character and description, *1329 TO HAVE AND TO HOLD NEVERTHELESS, upon the trusts and the uses and in the manner hereinafter specified, as follows: First. To receive the rents, issues and profits of all my property, except from the Homestead hereinafter specified; and to sell the whole or any part of my property, except the said Homestead, and to reinvest the proceeds thereof for like uses and trusts, and from the proceeds: 1. To build and furnish at a sum not exceeding Six Thousand Dollars ($6,000.00) upon a piece of property to be selected by them the said trustees, at Hollywood, in the county of Los Angeles, state of California, from such property as I may own at the time of my death, to be known as a Homestead, and not to exceed one (1) acre in extent. 2. When the house upon the said Homestead is constructed it shall be held in trust by my said trustees so long as my said husband or my said sister may live, and shall be used by them or the survivor of them as a home; it shall also be used as a home by any child or children which I may have living who may desire to reside in the same during the existence of this trust; and my Mother shall also have the right to reside in the said Homestead during her*1330 life. II. From the rest and residue of my estate, from the rents, issues and profits thereof, and from the proceeds of sale thereof, I direct my said trustees to pay all taxes, expenses and repairs on my said property, and to apply from the proceeds thereof monthly a sum not to exceed two hundred dollars ($200.00) for the support and maintenance of those persons who may reside in said Homestead, viz: my husband, my sister, and my children, and while residing in said Homestead, under the terms of this will, as hereinbefore designated, for the period and times herein specified. 1st. A reasonable sum shall be applied for the education, clothing and maintenance of my children, Marian and Phyllis, and for any child or children which may hereafter be borne to me. 2nd. Should there be a net income in excess of the above requirements, then the same is to be divided quarterly between my children, at majority, and thereafter as received. 3rd. The trust created with respect to the said Homestead is to terminate when my said sister, and my said husband shall both die, and thereupon fee simple title to said property shall descend to my heirs. III. The trust upon my other*1331 property hereinbefore specified shall continue throughout a period of time, which period is designated as being twenty-five (25) years from the birth of the youngest of my children who may be living at the time of my death, whether now born or hereafter to be born; provided, however, that the said trust shall cease and determine upon the death of my children if they shall all die without issue before the end of the period last hereinbefore mentioned. IV. Upon the expiration of said trust, the property so devised in trust, except the said homestead, shall descend to and be distributed among such of my children *364 as shall be living at the expiration of said trust, share and share alike; provided, however, if any child of mine shall have died, leaving child or children surviving, such child or children shall take the share which the deceased parent would have taken if then living. And provided, further, that if my said husband shall be living at the expiration of the said trust, the whole of said property shall be charged with the payment of Two Hundred Dollars ( $200) per month during his life, for his maintenance and support, which said charge shall be a lien upon the*1332 whole of said property so distributed, and shall be paid quarterly. V. Should all of my children die before reaching the end of the said period leaving no issue them or either of them surviving, then it is my will that the whole of said property shall be and become the property of my said sister and of my said husband, share and share alike, if they shall both be living at that time; and if my husband be not living at that time, then it is my will that the whole of said property shall be and become the property of my sister; and if my husband be then living, and my sister be then dead, leaving children her surviving, then the property is to be divided one-half to my husband, and one-half to the said children of my sister; and if my husband shall then be living and my sister then be dead leaving no issue her surviving, then the said one-half of my said property shall be and become the property of my said husband, and the other half shall go to my heirs. VI. Should any or either of my trusts hereinbefore provided for be adjudged null by the final decree of any court, then it is my will that the property covered by such trust shall be and become the property of my children*1333 who may be living at my death. VII. It is my desire that the trust hereinbefore provided for shall be conducted by my said sister and my said husband; but if either one of them shall fail to qualify as such trustee, or cease to be such trustee after qualifying, then it is my will that the powers herein conferred upon them shall be exercised by that one of the said trustees * * * remaining in office, and by another trustee to be appointed by the court; my will and desire being that my property shall be managed by two trustees, and that it shall take the concurring act of both trustees for the sale of my said property. VIII. For the purposes of this will, the trustees hereinbefore referred to are empowered to sell, convey, and transfer any part of my property without the previous consent or subsequent approval of any court, and I empower my executor hereinafter named, to sell the whole or any part of said property, without the previous authority or approval of any court. And I hereby nominate and appoint my said sister and my said husband the executors of this, my last will and testament, and I hereby exempt my said husband and my said sister from giving bonds, either*1334 as trustees or executors; but I do not exempt any trustee who may be appointed by the court to fill the office of trustee under this will from giving bond, but it is my desire that any trustee so appointed by the court shall give bond. *365 IX. It is my will and desire that my executors should employ, as attorney of my estate, and as their attorney during the execution of the said trusts hereinbefore before mentioned, under this will my present adviser, Albert M. Stephens. X. The provision hereinbefore made for my said husband is in lieu of all claims of homestead of allowance of every kind from my said estate, and should he claim a homestead therefrom or any monthly allowance from the court, then the provisions herein made for him are revoked, and I hereby revoke all former wills by me made. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 11th day of December, 1905. IDA WILCOX BEVERIDGE (SEAL) The children of the decedent at the time of her death were Marian Beveridge, later Mrs. Marian B. Campbell (now Marian B. Pringle, one of the petitioners herein) and Phyllis Beveridge (now Phyllis Brunson, one of the petitioners herein). Phyllis Beveridge, *1335 the youngest daughter, reached the age of 25 years on the 25th day of July, 1923. Philo J. Beveridge, husband of the decedent, died on or about May 1, 1921, and all of his estate, with the exception of certain specific legacies, was distributed to the petitioners herein. On June 30, 1923, Madge H. Connell, sister of the decedent, and Amelia J. Hartell, mother of the decedent, "for a valuable consideration" transferred and quitclaimed to the two petitioners, all their homestead and other rights under the will of the decedent. The property in question was actually distributed to the petitioners, as tenants in common, share and share alike, by decree of court on July 26, 1923. In the "First and Final Account Report and Petition for Distribution," filed on June 30, 1923, with the probate court by the executrix of the estate of Ida Wilcox Beveridge, the following appears: That it is not necessary to set out the terms or conditions of said trust or to distribute said property in trust, for the reason that at the time of the presentation of this petition and account for hearing, said Phyllis B. Brunson will have, if she lives, attained the age of twenty-five years. Lots 1*1336 to 9, and 11 to 18, inclusive, in tract 6562, Hollywood, California, and lots 7, 8 and 9, block 3, Hollywood, California, being a part of the land inherited by the petitioners from their mother, were sold by the petitioners in 15 parcels on dates from July 29 to August 1, 1923, for a total amount of $288,906. The selling expenses in connection with these lots were $12,683.24, and the net amount received from their sale was $276,222.76. The fair *366 market value of all of this described property on July 25 or 26, 1923, was the same as the selling price. The fair market value of the same property at the date of the death of the decedent, Ida Wilcox Beveridge, was $76,600, and is the value used by the respondent in determining the deficiencies herein. OPINION. MCMAHON: In computing the profit on the sale by the petitioners in 1923 of certain property which they received under the will of their mother, Ida Wilcox Beveridge, referred to as the decedent, the respondent used as the basis the value of the property at August 7, 1914, the date of the death of the decedent, to wit, $76,600. The question here presented is whether that figure is the proper basis to be used or*1337 whether there should be used as the basis the value at July 25, 1923, the date of the termination of the trust, the value at which time was equal to the selling price of the property. In the latter event, the petitioners are not chargeable with any profit upon the sale. Section 202 of the Revenue Act of 1921 provides in part as follows: (a) That the basis for ascertaining the gain derived or loss sustained from a sale or other disposition of property, real, personal, or mixed, acquired after February 28, 1913, shall be the cost of such property; except that - * * * (3) In the case of such property, acquired by bequest, devise, or inheritance, the basis shall be the fair market price or value of such property at the time of such acquisition. * * * Petitioners contend that what they received at the date of death of the decedent was simply a contingent remainder and that they did not acquire the property in question until the date of the expiration of the trust period. They argue that the trustees held an estate comparable to an intervening life estate and that the petitioners simply had a contingent remainder. None of the cases cited by petitioners hold that trustees*1338 take a beneficial interest in real property. They simply sustain the proposition that a testamentary trustee takes legal title to real property immediately upon the death of the testator. Petitioners cite the following provision of the laws of California, which was in effect at the date of the death of the decedent: Trustees of express trusts to have whole estate. Except as hereinafter otherwise provided, every express trust in real property, valid as such in its creation, vests the whole estate in the trustees, subject only to the execution of the trust. The beneficiaries take no estate or interest in the property, but may enforce the performance of the trust. [Sec. 863 of the Civil Code of California, 1927, legislation enacted March 21, 1872.] *367 However, in ; , the Supreme Court of California stated in regard to that section: * * * The provision in section 863, Civ. Code, that, "except as hereinafter otherwise provided, every express trust in real property, valid as such in its creation, vests the whole estate in the trustees, subject only to the execution of the trust," is limited*1339 by the succeeding sections to the estate given to the trustee for the purposes of the trust, and does not include any estate in the property which is not required by the trust. . * * * From a reading of the will it is clear that the decedent did not intend to vest in the trustees any interest except the legal title to the property, to hold in trust for the beneficiaries. The law of California that was in effect at the date of the death of the decedent provided in part as follows: § 768. Reversions. - A reversion is the residue of an estate left by operation of law in the grantor or his successors, or in the successors of a testator, commencing in possession on the determination of a particular estate granted or devised. § 769. Remainders. - When a future estate, other than a reversion, is dependent on a precedent estate, it may be called a remainder, and may be created and transferred by that name. [Sections 769 of the Civil Code of California, 1927 - legislation enacted March 21, 1872.] Clearly, the interest which the petitioners obtained upon the death of the decedent was not a remainder. *1340 Their interest under the trust was not dependent on a precedent estate. In ; , cited by petitioners, the Supreme Court of California stated: The cardinal rule in the interpretation of a will is that "it is to be construed according to the intention of the testator." Civ. Code, § 317. As said in : "The purpose of construction as applied to wills is unquestionably to arrive, if possible at the intention of the testator; but the intention to be sought for is not that which existed in the mind of the testator, but that which is expressed in the language of the will." It is not the business of the court to say, in examining the terms of a will, what the testator intended, but what is the meaning to be given to the language which he used. Where the terms of a will are free from ambiguity, the language used must be interpreted according to its ordinary meaning and legal import, and the intention of the testator ascertained thereby. It is true that presumptions are to be indulged in which will prevent intestacy (*1341 ), and that testamentary devises are presumed to vest at the death of the testator (Civ. Code, § 1341); but these presumptions, like the auxiliary rules of construction relied on by appellant, are subordinate to the cardinal rule just stated. See also Under the laws of California there was a presumption that the property vested in the beneficiaries at the testator's death. The *368 following provisions of the laws of California were in effect at the time of decedent's death: § 1341. When devises and bequests vest. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. § 1342. When cannot be divested. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. [Sections 1341 and 1342 of the Civil Code of California, 1927 - legislation enacted March 21, 1872.] Even aside from the statutory presumption, we believe, from a reading of the will, that it was the*1342 intention of the decedent that her children should receive a vested interest under the trust immediately upon her death. The statutory presumption is augmented by the intention of the testator as evidenced by the provisions of the will, particularly the following provision: Should any or either of my trusts hereinbefore provided for be adjudged null by the final decree of any court, then it is my will that the property covered by such trust shall be and become the property of my children who may be living at my death. In , the Supreme Court held that upon the death of the owner of personal property, there vests in his heirs or legatees immediately the right to respective distributive shares of so much as might remain after proper administration, and the right to have that share delivered upon entry of the decree of distribution, but that legal title vests in the executors or administrators. The title to real estate, however, as pointed out in that case, passes to the owner's heirs or devisees immediately upon the owner's death. The court there stated: Petitioner's right later to have his share of the residue vested immediately*1343 upon testator's death. At that time petitioner became enriched by its worth, which was directly related to and would increase or decline correspondingly with the value of the property. And, notwithstanding the postponement of transfer of the legal title to him, Congress unquestionably had power and reasonably might fix value at the time title passed from the decedent as the basis for determining gain or loss upon sale of the right or of the property before or after the decree of distribution. And we think that, in substance, it would not be inconsistent with the rules of law governing the descent and distribution of real and personal property of decedents to construe the words in question to mean the date of death. In the instant proceeding legal title to the property in question vested immediately upon the death of the decedent in the trustees by virtue of the provisions of decedent's will. Thus, although the instant proceeding involves realty, the situation herein closely resembles that in , since the legal title did not vest immediately in the petitioners herein upon the death of the *369 decedent. In the instant proceeding, *1344 under the principles enunciated in , there vested in the petitioners the right to their distributive shares of so much of the property as might remain at the end of the trust period, and the right to have it delivered at the end of that period. In , the executors were in the position of trustees. The court pointed out, and the same is true in the instant proceeding, that the trustees did not take title for themselves, but on behalf of the beneficiaries. Here also, as in , the decree of distribution conferred upon the beneficiaries no new right. It merely identified the property remaining, it evidenced the right of possession in the beneficiaries, and required the trustees to deliver the property to the beneficiaries. The legal title so given related back to the date of the death of the decedent. The petitioners' right to distribution of the property to them would be defeated only in the event of their death. The case of *1345 , although involving personal property, is also helpful in the instant proceeding. There certain stock was transferred by the testator in trust for a period not to exceed five years, at the end of which time it was to be distributed to certain beneficiaries. In that case we stated: We can see no essential difference, as to the principle involved, between that case [Brewster v. Gage] and the present proceedings. There, possession and dominion by the legatees was deferred during an indeterminate period of administration; here, possession is postponed for not to exceed a five-year trust period, the legatees meanwhile receiving the income earned by the stocks. We hold, therefore, that the stocks in question were acquired upon the death of Julius D. Abeles on August 15, 1920. Cf. . At the death of the decedent these petitioners "acquired" the property within the meaning of the revenue act. In view of the fact that there is no remainder involved in the instant proceeding, we are not concerned with the cases dealing with remainders, such as *1346 . We hold that the respondent did not err in using the value of the property at the date of the death of the decedent as the basis for the computation of gain derived by petitioners upon the sale of the property. We find nothing in the cases relied upon by the petitioners which leads to a different conclusion. Judgment will be entered for the respondent.