675 Opinion of the Court than make a few articulate sounds. There is nothing in the evidence to show that he ever wrote anything except his name to the documents transferring property. During all of this period while decedent was afflicted with lack of speech, lack of the use of his right arm and leg, and was dependent upon a trained nurse for support and attention constantly day and night, there is not a single line of evidence to show that he read a paper or magazine or had a paper or magazine read to him. Decedent may not have thought that death was imminent, but a man, with as keen a mind as his before he was stricken, must have known that he was in a serious condition and in a doubly serious condition after his second stroke. The question before us is whether these gifts were made as substitutes for testamentary dispositions, and thus provide an evasion of the estate tax. We must determine the motive which induced the transfers. As was said in the case of United States v. Wells, 283 U. S. 102, 116, 117, 118: * Transfers in contemplation of death are included within the same category, for the purpose of taxation, with transfers intended to take effect at or after the death of the transferor. The dominant purpose is to reach substitutes for testimentary dispositions and thus to prevent the evasion of the estate tax. Nichols v. Coolidge, 274 U. S. 531, 542; Milliken v. United States, ante, p. 15. As the transfer may otherwise have all the indicia of a valid gift inter vivos, the differentiating factor must be found in the transferor's motive. Death must be "contemplated," that is, the motive which induces the transfer must be of the sort which leads to testamentary disposition. As a condition of body or mind that naturally gives rise to the feeling that death is near, that the donor is about to reach the moment of inevitable surrender of ownership, is most likely to prompt such a disposition to those who are deemed to be the proper objects of his bounty, the evidence of the existence or nonexistence of such a condition at the time of the gift is obviously of great importance in determining whether it is made in contemplation of death. As the test, despite varying circumstances, is always to be found in motive, it cannot be said that the determinative motive is lacking merely because of the ab Opinion of the Court 93 C. Cls. sence of a consciousness that death is imminent. It is contemplation of death, not necessarily contemplation of imminent death, to which the statute refers. It is conceivable that the idea of death may possess the mind so as to furnish a controlling motive for the disposition of property, although death is not thought to be close at hand. Old age may give premonitions and promptings independent of mortal disease. Yet age in itself cannot be regarded as furnishing a decisive test, for sound health and purposes associated with life, rather than with death, may motivate the transfer. The words "in contemplation of death" mean that the thought of death is the impelling cause of the transfer, and while the belief in the imminence of death may afford convincing evidence, the statute is not to be limited, and its purpose thwarted, by a rule of construction which in place of contemplation of death makes the final criterion to be an apprehension that death is "near at hand." If it is the thought of death, as a controlling motive prompting the disposition of property, that affords the test, it follows that the statute does not embrace gifts inter vivos which spring from a different motive. Such transfers were made the subject of a distinct gift tax, since repealed. * The purposes which may be served by gifts are of great variety. It is common knowledge that a frequent inducement is, not only the desire to be relieved of responsibilities, but to have children, or others who may be the appropriate objects of the donor's bounty, independently established with competencies of their own, without being compelled to await the death of the donor and without particular consideration of that event. There may be the desire to recognize special needs or exigencies or to discharge moral obligations. The gratification of such desires may be a more compelling motive than any thought of death. When it is taken into consideration that the decedent made no provision for his family, with the exception of the small amounts given to his sons and daughter, and no provision for his wife, previous to his sudden affliction, and then, after his second stroke, disposed of over half of his entire estate, it is impossible to arrive at any other conclusion, taking his mental and physical condition into consideration, than that the thought of death was the impelling motive for the transfers, thereby avoiding testamentary dis 695 Reporter's Statement of the Case positions. Myers, Adm., 77 C. Cls. 429, certiorari denied, 292 U. S. 629; Harris Trust et al., 90 C. Cls. 17, certiorari denied, 310 U. S. 632. The determination of the Commissioner of Internal Revenue that the transfers to decedent's daughter and daughtersin-law, the transfers to his sons, the realty trust created for his wife and four children, and the transfer to his wife which constituted the material part of his estate, were made without adequate consideration of money or money's worth and were made in contemplation of death, we think, is correct. The petition is dismissed. It is so ordered. MADDEN, Judge; JONES, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. ROLAND W. RETICKER, ADMINISTRATOR OF THE ESTATE OF H. B. RETICKER, DECEASED, v. THE UNITED STATES [No. 44584. Decided May 5, 1941] Estate tax; properly conveyed under trust indenture; reservation of control of distribution.-Decided upon the authority of Porter et al. v. Commissioner, 288 U. S. 436, and Hoblitzelle et al., Executors v. United States, 77 C. Cls. 639, in which it was held that under similar provisions in the trust instrument the property conveyed thereby was properly included in the gross estate. The Reporter's statement of the case: Mr. L. A. Luce for the plaintiff. Mrs. Elizabeth B. Davis, with whom was Mr. Assistant Attorney General Samuel O. Clark, Jr., for the defendant. Messrs. Robert N. Anderson and Fred K. Dyar were on the brief. The court made special findings of fact as follows, pursuant to a stipulation of the parties: 1. The plaintiff, a citizen of the United States and a resident of the City of Los Angeles, California, is the administrator of the estate of H. B. Reticker, deceased. Reporter's Statement of the Case 93 C. Cls. 2. H. B. Reticker died in Los Angeles, California, on November 6, 1932. On May 24, 1930, the decedent, H. B. Reticker, created a trust known as "Trust No. P-8963." The Title Insurance and Trust Company, a California corporation, was designated as trustee thereof. Among other things the trust instrument provided as follows: Section Nine IT IS EXPRESSLY UNDERSTOOD that this Trust No. P-8963 IS IRREVOCABLE as to corpus and as to "net income." However, the right hereby is reserved unto the aforesaid H. B. Reticker (the Trustor) TO AMEND this Trust in whole or in part at any time or from time to time by written request therefor addressed and delivered to the Trustee Provided, The Trustor cannot so amend this Trust as to make him a beneficiary in any manner hereunder. 3. After the death of H. B. Reticker, plaintiff duly filed an estate tax return for the estate of the decedent. In this return the value of the property transferred in the trust above described was not included in the gross estate. The Commissioner of Internal Revenue thereafter determined a deficiency in estate tax in the amount of $11,236.11 which arose from the inclusion in gross estate of the value of the property so transferred in trust. The amount of $11,236.11 was paid on February 9, 1935, and interest of $849.64 was paid on May 23, 1935, making a total of $12,085.75. On February 8, 1937, a claim for refund of estate tax was filed upon the ground that the value of the property transferred in trust was not subject to the estate tax under the estate tax provisions of the Revenue Acts of 1926 and 1932. This claim for refund was rejected by the Commissioner of Internal Revenue on June 7, 1937. 4. There is no dispute between the parties as to the value of the property transferred in trust, and the parties agree that the only question is whether it should be included in the gross estate of the decedent under the provisions of section 302 (d) of the Revenue Act of 1926. The court decided that the plaintiff was not entitled to recover. 695 Opinion of the Court GREEN, Judge, delivered the opinion of the court: The plaintiff, the administrator of the estate of H. B. Reticker, deceased, brings this suit alleging that the Commissioner of Internal Revenue wrongfully included in the gross estate the value of certain property conveyed by the decedent in trust, by reason whereof the plaintiff was required to pay a deficiency in the estate tax in the amount of $11,236.11, and interest thereon in the sum of $849.64. A claim for refund was duly filed in proper form and disallowed. The question of whether the value of this property was properly included in the gross estate arises under the provisions of the trust instrument, which are as follows: IT IS EXPRESSLY UNDERSTOOD that this Trust No. P-8963 IS IRREVOCABLE as to corpus and as to "net income." However, the right hereby is reserved unto the aforesaid H. B. Reticker (the Trustor) TO AMEND this Trust in whole or in part at any time or from time to time by written request therefor addressed and delivered to the Trustee Provided, The Trustor cannot so amend this Trust as to make him a beneficiary in any manner hereunder. It will be observed that under these provisions the trustor reserved the right to amend the trust in whole or in part. The language used, we think, gave the trustor power to change the beneficiaries' enjoyment of the property, either entirely or partially, and this conclusion is strengthened by the reservation in the earlier part of the instrument that no beneficiary could sell or alienate his interest in any way. The trustor could not change the trust so as to get back to himself either the corpus of his trust or the net income, but he could change the interests of the beneficiaries. Section 302 of the Revenue Act of 1926, provides: SEC. 302. 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 * (d) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject |