¶1dissenting: Having reference to part III in the prevailing opinion, I do not agree, under the circumstances here present, that the property embraced in the trust should be valued for estate tax purposes, as of the date of decedent’s death; or, if it is required by the statute to be so valued, that the statute is not unconstitutional.
¶2The statute in reference to estate taxes, here applicable, is section 302 of the Kevenue Act of 1926, which provides:
The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated ….
¶3This obviously refers to property of the decedent owned by him at the time of his death, and is not sufficient to include property theretofore conveyed away and not then owned by him. This is shown further by subsection (a) of this section, 302, which provides immediately after the language above quoted:
(a) To the extent of the interest therein of the decedent at the time of his death.
¶4It is significant that not only subsection (a) but also subsection (b) repeats the phrase theretofore used in the section, to wit: “ at the time of his death,” and that the next succeeding subsection, (c), does not use the phrase. It is subsection (c), in which the phrase “ at the time of his death ” is not used, that is controlling in this proceeding, and its pertinent language for the case at bar is as follows:
(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in .contemplation of … death. …
¶5The transfer being by trust in this case and having been determined to have been made in contemplation of death, we come to apply the cited portions of the statute to the following portions of the findings of fact:
On June 1, 1926, the date of the execution of the transfer to Oora B. Igleheart, as trustee, the total value of the property transferred to her was $498,599.88 and the value of the property held under the trust instrument at the date of the decedent’s death was $606,974.88, which latter amount was included by the respondent in the gross estate.
¶6The question presented is how and by what yardstick of time should we measure and fix “ the extent ” of the “ interest ” in the property transferred on June 1,1926, to the trustee, for its inclusion in the gross estate of the decedent. The petitioner, answering the question, says by using the value of the property transferred at the date of the transfer; the respondent says by using the value of the property transferred at the time of the death of the transferor. The *913statute does not require that because the transfer is of a testamentary nature it should be measured as if under a testament.
¶7On June 1, 1926, the extent of the interest of the transferor in the property was all of it, including the right to convey it even in contemplation of death. A conveyance made in contemplation of death is not void or voidable for that reason. The extent of the interest- of the transferor in the property after June 1, 1926, when he conveyed it to the trust, including the time of his death, was nothing. How the difference of $108,315 was added to the trust fund after the transfer made by decedent and before decedent’s death, whether by the efforts and management of the trust by the trustee, contributions by other friends of the beneficiaries, or by the general rise in the market values of the trust properties, or otherwise, is not shown in the evidence and the findings of fact. The only thing we know is that the $108,315 was not transferred by the decedent to the trust and his death was no generating source of any right therein. Coolidge v. Long, 282 U.S. 582. Shall it be included in the gross estate of the decedent % It seems to me that to measure the transferor’s estate at death, for estate tax purposes, by including property which was not then and never had been his property, is arbitrary and capricious beyond that permitted by the statute or the Constitution. Heiner v. Donnam, 285 U.S. 312. See also Frew v. Bowers, 12 Fed. (2d) 625.
¶8In the case of Milliken v. United States, 283 U.S. 15, cited as the controlling authority in the prevailing opinion, decedent therein in contemplation of death, gave property to his children after the effective date of the 1916 Revenue Act and before the effective date of the 1918 Revenue Act, in which latter act the estate tax rate was increased. Decedent died in 1920. The tax was computed on the basis of the value of the gift at the time of the death of decedent and taxed at the rate in the 1918 Act; but there is nothing in the case in the Court of Claims or the Supreme Court to indicate that the value of the gift to the children was greater or less when decedent died than when the gift was made. In the Millikencase petitioner was contending that the 1918 Act, enacted after the gift to the children, was retroactive, and that he should be taxed at the lesser rate provided in the 1916 Act, if at all. There was no dispute as to the value of the property and no contention that its value at the time of the death of the decedent was different from its value at the time the gift was made. Whatever may have been said in the two opinions filed in the Court of Claims or in the opinion of Mr. Justice Stone in the Supreme Court, if anything, in reference to the time when the value of the gift should be computed, was obiter dictum, for that question, present here, was not present in the *914Millikencase. There are found in the books judicial expressions anticipatory of this question, but no case cited in the majority opinion or called to the attention of the Board presents this precise question for review.