¶1concurring: I am of the opinion that the decision in this appeal is governed by Irwin v. Gavit as above set forth, and I concur in the decision only for that reason. I agree also that the question here involved is not a question of depreciation of a life interest, but is the more fundamental question whether the so-called income received through an estate or trust by life tenants is in fact in any proper sense all income to the life tenant.
¶2We have been for many years familiar with the valuation of estates for inheritance, transfer, and estate-tax purposes, whereby definite and determined values are placed on the inheritance, or transfer or bequest of property to life tenants. These values, plus the values of the remainders, are necessarily the values assigned to the entire property transferred by the devise. The difference in these estates is well recognized both in law and in fact, and it is recognized that the life tenant receives under such circumstances something which has capital value, and upon which taxes on inheritances and bequests are imposed and paid. The Federal Government has itself imposed inheritance taxes (in 1898), although in later years it has chosen to impose the death duties in the form of an estate tax which graduates the tax in accordance with the entire property passing instead of in accordance with the value passing to each particular heir, legatee, or devisee. It would be an anomalous situation, indeed, if the Fed*268eral Government, imposing an inheritance tax, held that for the purpose of that tax a life tenant might be in receipt of something of capital value, and then held, after that transfer had paid its contribution to the public revenue, that all of the amounts received year by year constituted income subject to taxation again. It seems to me perfectly clear that the amount received under these circumstances is a mixture of capital and income, the life tenant year by year receiving a portion of that value which was originally estimated as his capital, thereby diminishing his interest in the capital as the years go by. It is likewise true, it seems to me, that the remainderman, as the .years pass and his expectancy of ultimate receipt of the property approaches, has a greater and greater interest in the capital which comes to fruition at the death of the life tenant and the actual passing of title and possession. Whether upon the happening of the latter event the remainderman is in receipt of income in the amount of the difference between the value of the property received at that time and the value based upon the remainder interest when the original estate or trust came into existence, is a further question of interest not immediately at issue in this appeal, but probably a necessary corollary of the reasoning set forth above.
¶3It seems to me that the fallacy of treating as income all the receipts, under the circumstances of this appeal, becomes clear if we consider the effect which would result from such a rule in the case of an outright purchase of an annuity, an uncommon thing in the United States, but a very common practice in most European countries. Annuities may readily be purchased on the basis of the life expectancy of the annuitant and, like ordinary life insurance, are figured upon the period of time expected to elapse between the beginning of the payment of the annuity and the death of the annuitant. The computation is merely the reverse of the computation involved in life insurance. It seems perfectly clear to me that if a person purchased an annuity for $100,000 he would be entitled to treat as a return of capital that pro rata portion of each annuity payment necessary to produce $100,000 out of the total expected annuities.
¶4Such an annuitant is in no different position from the recipient of a life estate or from the recipient of an annuity from a life insurance company in those cases where provision has been made that the beneficiary should taire a certain sum per annum for life in lieu of the gross face amount of the policy.
¶5I am not unmindful of the fact that in the instant appeal the interest of the taxpayer in her grandfather’s estate which she inherited on the death of her mother was contingent upon the total number of grandchildren then living who should survive their re*269spective parents, and upon her surviving the last of Poth’s children to die, and that her annual distribution was subject to be increased or decreased as her uncles and aunts died leaving more or less than two children surviving. As set forth in the findings of fact, this contingency was apparently not considered in the facts pleaded by the taxpayer, and the value of the life interest of the taxpayer at the death of her mother can not, therefore, be computed from the data submitted. In view of the decision in this appeal, this point is immaterial. It is introduced merely to show one of the elements of difficulty surrounding the treatment of a portion of a life estate with a contingent remainder in corpus as a return of capital, although such difficulty is in .the last analysis a mere problem in valuation, far less difficult in its intrinsic features than many problems of March 1, 1913, value, with which the Board and the courts are constantly struggling.