concurrence">Green:

I am able to concur in the result only. To me, it appears that the constitutionality of the Act is involved and should have been decided.

Love,

dissenting: I do not agree with the argument used in the opinion in this case, nor do I agree with the conclusions of law announced therein.

The Revenue Acts of 1918, 1921, 1924, and 1926, prescribe that for estate-tax purposes, the gross estate of a 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. I *709have found no theory advanced nor any opinion of a court holding that at the time of his death the decedent owned no property right in real estate held by him as tenant in the entirety. Having conceded that premise, it follows that the statute prescribes that the value of such property must be included in his gross estate. With slight variation in verbiage the acts above referred to specifically include in the gross estate any interest held by the decedent as tenant in the entirety.

Section 403 of the 1918 and 1921 Acts and section 303 of the 1924 and 1926 Acts prescribe that the net estate shall be determined by deducting from the value of the gross estate funeral expenses, administration expenses and certain claims against the estate. Hence, it is perfectly apparent that Congress intended that the value so obtained should be included in the net estate.

Sections 401 and 301 of the respective acts above referred to prescribe that:

A tax equal to tlie sum of the following percentages of the value of the net estate (determined as provided in section 303 [403]) is hereby imposed upon the transfer of the net estate of every decedent dying after the enactment of this act.

It is therefore perfectly apparent that Congress intended to include such property in the net estate and burdened itself with special effort to so express that intent, and intended to levy a tax on it. To hold that the value of such property must be excluded from the gross estate or the net estate, or that it is not subject to estate tax is, to all intents and purposes, a holding that those acts are unconstitutional. I do not believe that they are unconstitutional. The Supreme Court has not so held. I fully understand the position taken, that is, let the value of that property go into gross estate; let it form a part of the net estate. But they contend that it is not transferred and that section 301 levies a tax only on the transfer.

It occurs to me that such a view restricts the import and use of the word “ transfer ” entirely too much. A transfer, may be accomplished by operation of law. Did the surviving wife have anything after the death of her husband, which she did not have prior to his death? It is the recognized law of tenancy by entirety that neither spouse may alienate the property without being joined by the other. This lack of power to alienate any part of the property evidences beyond question the lack of a fee simple title in either spouse. The right and power to alienate is a sme qua non of a fee simple title. After the death of the husband, the wife may alienate the property, that is, by the death of the husband the fee simple title to the property passed to her.

It is the rule in most, if not all of the States that recognize tenancy by the entirety, that during coverture the husband and the *710wife each is entitled to one-half the rents and profits coming from such real estate. After the death of one spouse, the survivor is entitled to the whole profits. In the event of dissolution of the marriage relation otherwise than by death, each is entitled to the property in proportion to contribution to purchase price. Elliott v. Roll, 226 S. W. 590. Briefly stated, the law governing tenancy by the entirety as applied by the courts of the several States where that tenancy is recognized is that, with respect to every incident of property ownership, save and except the right to alienate, the husband and the wife each, is treated as a separate entity. When they desire to alienate the property, the myth that was created by law, the myth of the idea of the oneness of husband and wife, must act by and through the joint action of both.

By the dissolution of the marriage relation the myth dies, and the title theretofore held by that myth passes, in the event of death, to the survivor, in the event of divorce, to each, in proportion to contribution to purchase price of the property. Does nothing pass at death of one spouse, by operation of law, to the survivor? Is nothing transferred? During coverture, where the husband and wife make separate income-tax returns, who returns the rents and profits from the real estate so held as tenants by the entirety? Will each be required to return the whole? Will either return the whole and the other return no part of same? If so, the one who suffers a loss will avail himself of that right in order to offset such profit against his loss. Will not each return one-half of such income? An affirmative answer to the last question is an irrefutable declaration that each in his own right as a separate entity owns and holds a half interest in that property, with all the incidents of property ownership except the right to alienate the same.

The legal myth holds the legal title to the fee.’ On the death of one spouse, the fee simple title passes, is transferred by operation of law from the myth to the survivor, and with the passing of that fee simple title there passes all the property rights theretofore held by the decedent, which property rights the statute demands shall be included in the gross estate and net estate of the decedent, and shall be subject to the estate tax.

I realize the fact that the few decisions, directly in point, that have been handed down by our courts are, seemingly, against my theory and contentions, but the Supreme Court has not yet passed upon this question and, until that court finally determines the controversy, I feel that I am justified in recording my views.

I desire also to state that I have purposely refrained from burdening this opinion with a citation of authorities. Every individual proposition of law announced herein is amply supported by *711court decisions. It is only the final conclusion of law that is not supported by such decisions.

I believe the determination of the Commissioner should be approved.

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