transfer taxed, directly or indirectly, as would be the case were the transfer by will or by conveyance taking effect at or after the grantor's death. Under this statute, however, the remaining estate of the decedent, both in case of a transfer intended to take effect at the grantor's death and in the case of a transfer made in contemplation of death (as well as in the case of transfers by will) is made primarily liable for the tax, and it is only when the estate proves insufficient for the purpose that resort may be had, under section 209, to the personal responsibility of the transferee or to the property transferred, and even then a right of action over is given to the transferee. We find in the language of section 209-"If a decedent makes a transfer of or creates a trust with respect to, etc."-nothing which we think inconsistent with the construction of the act which we find disclosed by section 202 and by the other considerations to which we have called attention. Section 209 pertains merely to the remedy for the collection of the tax.

(d) Congress has not been averse to imposing taxation for a period preceding the passage of the taxing act. This has been ordinary practice with respect to income taxes. Indeed, the revenue act of September 8, 1916, here in question, provided for taxation of income accruing during the entire year beginning January 1, 1916. While in that case less than a year had elapsed, the distinction from the case presented here is one of degree and not of principle. The present income tax act, however, passed February 24, 1919 (40 Stat., ch. 18), imposed taxation for the year 1918, then wholly passed.

It is true that if the tax before us is retroactive it might, at least theoretically, affect conveyance made many years before a grantor's death, but this consideration is hardly practical. Congress would, we think, scarcely be impressed with a practical likelihood that a transfer made many years before a grantor's death (say 25 years, to use plaintiff's suggestion) would be judicially found to be made in contemplation of death under the legal definition applicable thereto, and without the aid of the two years' prima facie provision. The considerations which we have enumerated not only outweigh in our opinion those opposed thereto, but we think clearly, positively, and imperatively demand that the act be construed as intended to apply to transfers of the class here in question, although made before the act was passed, provided the death of the transferrer occurs thereafter.

2. Is the statute unconstitutional as applied to the trust deed? In our opinion the act, if so construed, is not void as denying due process of law or as violating the fifth amendment to the constitution.-Billings v. United States (232 U. S., 261, 282-3); Brushaber v. Union Pacific R. R. Co. (240 U. S., 1, 23, 24). Nor do we think the tax is to be classified as a direct tax, and thus void as within the constitutional requirement of apportionment. It is clearly an excise or duty tax.-Scholey v. Rew. (23 Wall., 331); Knowlton v. Moore, supra (at p. 78); Flint v. Stone-Tracy Co. (220 U. S., 107, 159); Keeney v. New York, supra (at p. 537). Without enumerating every objection suggested against the validity of the tax, we think it enough to say that in our opinion its validity must depend upon whether or not it can be said to interfere with vested rights. As regards this consideration, we may set to one side the interests of the beneficiaries under the trust deed. Not only are they not complaining, but no tax has been assessed against their interests. No interest, invested or uninvested, on their part is proposed to be or can be taken under the statute and the existing facts, for not only is decedent's remaining estate able to pay the tax, but it has already paid it. Decedent's estate alone, and those interested therein under her will, must bear the burden. It is settled law that one attacking a statute as unconstitutional must show that the alleged unconstitutional feature injures him.Southern Ry. v. King (217 U. S., 524, 534); Plymouth Coal Co. v. Pennsylvania (232 U. S., 531, 544-5).

As to plaintiff's interest: assuming that he is entitled to raise the ques

tion, we think the statute not invalid because applying to transfers made before its passage. It does not affect transfers made after the transferrer's death. Being within the all-embracing power of Congress over the subject of excise and transfer taxation, it is not necessarily unconstitutional merely because retroactive.-Cooley on Taxation (3d ed., pp. 492-494); Billings v. United States (232 U. S., 261, 282), where the validity of the 1909 tonnage act on the use of foreign-built yachts was assailed as retroactive; Brushaber v. Union Pacific R. R. Co. (240 U. S., 1, 20), which involved the validity of the income tax of 1913 as against a similar objection; Stockdale v. Insurance Co. (20 Wall., 323, 331, et seq.), which involved the income tax law of 1867. True, none of the cases referred to is on all fours with the instant case, but we think the principles they announce are decisive. Decedent's death being the generating source of the taxation and the statute validly classifying it as of testamentary character, it logically follows, in our opinion, that it is valid to impose at decedent's death a tax on the testamentary transfer occurring before the passage of the act, regardless of the fact that title had already passed to the transferees. In Cahen v. Brewster, supra (pp. 549 et seq.), a statute imposing an inheritance tax was sustained as to legatees of decedents dying prior to its enactment, but whose estates were still undistributed. This case is not without a certain amount of analogy; nor is there any controlling difference in principle between the assessment of a tax upon a previous testamentary transfer and the imposition of an income tax after the period covered thereby has wholly or in large part passed; nor—considering that death is the generating source of estate taxation-between an estate tax upon a transfer created by will and one upon a transfer created by testamentary deed, merely because in the one case a right of revocation existed while in the other it is absent, or because one took effect before and the other after the death of the transferrer.

This conclusion makes it unnecessary to consider the correctness of the construction put upon the act by the trial judge, which distinguished between the "net estate" burdened by the tax, viz., that which remained at decedent's death, and the net estate resulting from a gross estate which includes, for purposes of measurement, property previously transferred.

Plaintiff urges that in including in the revenue act of 1918 (40 Stat., 1057, 1097), the words "whether such transfer is made or occurred before or after the passage of this act," congress indicated an understanding that the act here in question was not intended to so provide. We think it, however, the more reasonable inference that the amendment of 1918 was made to elucidate without changing of the law, and put at rest any controversy on the subject.-Johnson v. So. Pacific R. R. Co. 196 U. S., 1, 20, 21); United States v. Coulby [D. C.] (251 Fed., 982, 985-6; affirmed, C. C. A., 6 (258 Fed., 27).

3. Meaning of the phrase "in contemplation of death."-Plaintiff asked an instruction that "the words 'in contemplation of death' do not refer to that general expectation of death which every mortal entertains, but rather the apprehension which arises from some existing condition of body or some impending peril." This request was refused, and the jury instructed that "by the term 'in contemplation of death' is not meant on the one hand the general expectancy of death which is entertained by all persons, for every person knows that he must die***. On the other hand, the meaning of the term is not necessarily limited to an expectancy of immediate death or a dying condition * The term 'in contemplation of death' involves something between these two extremes. Nor is it necessary, in order to constitute a transfer in contemplation of death, that the conveyance or transfer be made while death is imminent, while it is immediately impending by reason of bodily conditions-ill-health, disease, or injury, or something of that kind. But a transfer may be said to be made in contemplation of death if the expectation or anticipation of death in either the

*

immediate or reasonably distant future is the moving cause of the transfer." It may be conceded that plaintiff's requested instruction would have been proper as applied to a gift claimed to have been made causa mortis-when the grantor was in a dying condition. But the instant case presented no such issue or claim. The transfer in question was an absolute gift inter vivos, claimed by the government to have been testamentary in character. On principle, and without present reference to authority, the ultimate question concerns the motive which actuated the grantor; that is to say, whether or not a specific anticipation or expectation of her own health, immediate or near at hand (as distinguished from the general and universal expectation of death some time), was the immediately moving cause of the transfer. Both the element of "existing condition of body," as distinguished from the grantor's mental state on that subject, and the term "impending," are inconsistent with the prima facie provision of section 202 (b), which we have set out in paragraph (a) of the first division of this opinion.

Plaintiff's contention also overlooks the contribution which may be made to the grantor's state of mind and motive by a realization of the fact that she had already lived many years beyond the scriptural limit. Of course, the grantor's bodily health especially as known to her, was an important factor in ascertaining her state of mind and determining the ultimate question whether she was directly actuated by a "contemplation of death." Upon principle we think the court's instruction correct.

Nor do we think the trial court's definition in conflict with any settled and controlling rule of construction. No federal decision directly in point is cited. Plaintiff relies on the decisions of the courts of New York, Illinois, Wisconsin, and California, construing similar statutes antedating the federal act (that of New York-1892-being the first in point of time), not only as authority for the construction for which he contends, but as raising a presumption that congress adopted the construction put by the highest courts of those States upon their statutes.

In our opinion, the decisions relied on by plaintiff do not completely or uniformly support his definition. The New York decisions are not convincing. In the matter of Seaman (147 N. Y., 69) [1895], the expression "in contemplation of death" was said in effect to be confined to conveyances causa mortis. While this statement was obiter, it seems to have been reflected in some at least of the subsequent decisions of the New York courts; and while the proposition above cited was definitely rejected in In re Dee's estate (148 N. Y. Supp., 423), affirmed 1914 (210 N. Y., 625), and conveyances inter vivos held to be embraced within the phrase "in contemplation of death," it would not be natural that the decisions meanwhile construing that phrase should be more or less influenced by such earlier classifications. For instance, in the matter of Spaulding's estate (63 N. Y. Supp., 694), affirmed (163 N. Y., 607), the decision was substantially rested on the ground of lack of evidence that the conveyance was made when the grantor was in extremis or that it was made to avoid the estate tax. In the matter of Mahlstedt's estate (73 N. Y. Supp., 818, 820)-decided before the statute had been definitely held to apply to gifts inter vivos-the essential question was said to be whether the transfer "was made in the then belief that he was not going to get well; that it was made in contemplation of his impending death and for the purpose of defrauding the State of the transfer tax." Manifestly, the question of intent to evade has no pertinency to the case of a purely testamentary conveyance into vivos.-Rosenthal v. People (211 Ill., App. 308, 309). As showing the lack of the settled construction in New York contended for by plaintiffs, it is significant that in the Crary case (64 N. Y. Supp., 566, 568) the statute was defined as said to be "intended to reach absolute transfer of property when made under a certain condition, viz, when the transferrer was contemplating death; that

is, the thought of death has taken so firm a hold on his mind as to control and dictate his actions regarding his property, and the business is transacted while contemplating death, and considering what conditions would arise or exist in the event of death without making the transfer or, to be more specific, the contemplation of death is the sole motive and cause of the transfer." The state of mind of the grantor was, at least impliedly, recognized as the ultimate test (p. 569).

The Illinois decisions fall short of supporting plaintiff's definition. In Rosenthal v. People (211 Ill., 306, 309) the only definition of "in contemplation of death" is this: "A gift is made in contemplation of an event when it is made in expectation of that event and having it in view, and a gift made when the donor is looking forward to his death as impending, and in view of that event, is within the language of the statute." The second half of the quotation presumably relates to the application to the statute of the facts of the case.-Merrifield v. People 212 Ill., 400) contains no definition of the term we are considering. The same is true of People v. Kelly (218 Ill., 509, 515). There a question of fact was alone involved, the court finding no evidence tending to show that the transferrer "thought he was about to die at the time he executed said trust deed, or that he made said trust deed in contemplation of his death." In in re estate of Benton (234 Ill., 366, 370), the definition given in Rosenthal v. People was cited with approval. The court, after citing both the Rosenthal and Kelly cases, said: "Under the law as established by the foregoing decisions the question at issue is whether the gift was made in expectation of death, and a purpose on the part of the donor to place his estate, or some part thereof, in the hands of those whom he desired to enjoy it after his death.” It is true that in People v. Carpenter (264 Ill., 400, 408), the court, citing the Rosenthal and Benton cases, remarked: "Of course, the words 'in contemplation of death' as used in these statutes do not mean that general expectation of all rational mortals that they will die some time, but it means an apprehension of death which arises from some existing infirmity or impending peril." But not only do the Rosenthal and Benton cases fall short of fully sustaining that definition as an exclusive one, but the language we have quoted was purely obiter, as no claim was made that the trust agreements were executed "in view of death," and the decision in the trial court, as expressly stated in the opinion of the supreme court, did not rest on that ground (p. 408).

Nor do the Wisconsin cases support plaintiff's contention. In State v. Pabst (139 Wis., 561, 590), it is said that the words "in contemplation of death" are "evidently intended to refer to an expectation of death which arises from such a bodily or mental condition as prompts persons to dispose of their property and bestow it upon those whom they regard as entitled to their bounty;" and again, "A transfer valid as a gift inter vivos, if made under circumstances which impress it with the distinguishing characteristics of being prompted by an apprehension of impending death, occasioned by a bodily or mental state which has a basis for the apprehension that death is imminent, would be a transfer made in contemplation of death within the meaning of the law." True, in State v. Thompson (154 Wis., 320, 328-9), the court cited with approval the holding in the Pabst case, which we have already quoted; the quotation which we give in the margin from In re Baker's estate' (82 N. Y. Supp., 390-2 (affirmed 178 N. Y., 575), also decided before the New York statute had been authoritatively held to include gifts inter vivos), and the holding in People v. Burkhalter (247 Ill., 600, 604), that "contemplation of death must be the impelling motive for making the gift in order that it be subject to an inheritance tax." The

1 This court has held that the words "in contemplation of death" do not refer to that general expectation which every mortal entertains, but rather the apprehension which arises from some existing condition of body or some impending peril.

definitions given in these various citations are not uniform or entirely consistent. Moreover, the decision of the Thompson case seems to have turned at the last on the question whether the grantor's age "was so great when the gifts in question were made as to establish the fact that they were made in contemplation of death."

The California decisions are not especially pertinent, for the reason that the California statute contains a definition of the term "in contemplation of death."-Estate of Reynolds (169 Calif., 600); Kelly v. Woolsey (177 Calif., 325); Abstract Co. v. State (178 Calif., 691, 694); Spreckles v. California (30 Calif. App., 363, 369); McDougale v. Wulzen (34 Calif. App., 21); In re Minor's estate (180 Pac., 813). It is enough to say of these decisions (a) that they are not authority for the definition contended for by plaintiff; (b) that they specifically reject the New York definition, based upon the confusion between gifts causa mortis and conveyances inter vivos.-Estate of Reynolds supra (p. 603).

Criticism is made upon the expression "reasonably distant future," contained in the extract from the charge which we print in the margin. It is, we think, not open to question that had the word "close" instead of "distant" been used the instruction would have been proper, so far as concerns imminency. That the trial court regarded the words as equivalent, or intended to use the words "reasonably close," appears from his opinion announced immediately before instructing the jury, in which the words "reasonably close" were used. While "close" and "distant" are frequently directly opposed to each other, yet when used as here they are not necessarily opposed. A time which is only reasonably distant is reasonably close. There was nothing in the exception to the definition as made which would call the trial court's attention to a proposition that the word "close" should have been used instead of "distant," especially since there had been also an exception given to the court's announced intention to charge a "reasonably close" future.-Norfolk & Western Ry. Co. v. Earnest (229 U. S., 114, 119-20). Had the court's attention been called to the use of the word "distant," instead of "close" doubtless any question of difference between the two would readily have been obviated.

4. The sufficiency of the evidence.-The motion to direct verdict was properly overruled if there was substantial testimony tending to support a conclusion that the conveyence was made in contemplation of death, even though the testimony would have supported a contrary conclusion, as it doubtless would. We can not weigh the testimony. In our opinion there was substantial testimony, and as it must be considered in its aspect most favorable to defendant, we so state it, omitting for the most part specific mention of the considerations relied on by plaintiff where not as matter of law decisive.

Decedent was about 77 years of age when the trust deed was made. She had rheumatism of the knee and was subject to frequent attacks of constipation, a condition said to have a tendency in elderly people to autointoxication. She had arteriosclerosis, which according to the medical testimony is usually fatal, and she died of apoplexy, a medical attendant testifying that in his judgment the apoplexy and death primarily resulted from hardening of the arteries, secondarily from age. She was a childless widow and had lived most of the time for many years in the family of a sister who was a paralytic and who was the wife of Mr. Shwab, who was one of the beneficiaries in the deed of trust, the executor of decedent's will and her business partner. Mr. Shwab had sole charge and management of the business, which was carried on at Nashville, Tenn., where Mr. Shwab and his family resided. During his life he was to

2 "But a transfer may be said to be made in contemplation of death if the expectation or anticipation of death in either the immediate or reasonably distant future is the moving cause of the transfer."