Farwell v. United States
Decision Date | 04 April 1957 |
Docket Number | No. 11894.,11894. |
Parties | John V. FARWELL, III, attorney in fact for John Goodridge, administrator of the estate of Mark S. Willing, deceased; Margaret Willing Farwell, Evelyn Pierrepont Willing Chinn, and Mark S. Willing, Jr., sole heirs at law and next of kin of Mark S. Willing, deceased, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Peter B. Atwood, Chicago, Ill., Walker & Atwood, Chicago, Ill., of counsel, for appellants.
Charles K. Rice, Asst. Atty. Gen., Mildred L. Seidman, Atty., Dept. of Justice, Washington, D. C., Robert Tieken, U. S. Atty., Chicago, Ill., Lee A. Jackson, Hilbert P. Zarky, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before LINDLEY and SCHNACKENBERG, Circuit Judges, and WHAM, District Judge.
Plaintiffs filed their complaint in the district court seeking recovery of federal estate taxes assessed against and collected from the estate of Mark S. Willing, deceased. He is hereinafter referred to as the decedent. Suitable pleadings were filed and the facts were stipulated. After a hearing, the district court entered judgment for defendant, and plaintiffs have appealed.
We now relate the facts.
In October 1921, the decedent, then 43 years old, took out ten insurance policies on his life, each in the amount of $10,000. Each policy provided that the face amount was payable to his wife, if she survived him, if not, to his surviving children or, if none survived him, to his executors, administrators, or assigns "(subject to the rights of the Insured as hereinafter reserved to change any beneficiary or mode of settlement)". Each policy provided:
Decedent made changes of beneficiaries on December 2, 1921, May 3, 1923, March 17, 1926 and May 22, 1929. The 1926 change named1 trustees under trust agreement dated January 29, 1926, and the 1929 change named John Goodridge and Robert D. McFadon, as trustees under trust agreement dated May 8, 1929: "or if such trust be terminated, to my executors, administratiors or assigns; * * *."
In connection with the change of 1926, decedent, by said trust agreement, assigned, transferred and conveyed to the trustees these ten insurance policies. That instrument provided that, upon the death of decedent, the trustees were to collect the proceeds of the policies, and hold same as a trust fund. The net income of such fund was to be paid in specified parts to his wife and children, with contingent remainders as specified. The decedent reserved the right to change the proportions of income and principal payable to the beneficiaries, except that he could not make any part of the proceeds payable to his estate. He also reserved the right and power "to alter this agreement in whole or in part by changing the duties, powers and liabilities of the Trustees, provided said Trustees shall consent thereto * * *."
On May 7, 1929, he amended the agreement of 1926 to provide that: "The entire trust fund shall immediately be assigned, transferred, conveyed and paid by said Trustees to Cora Robinson as sole beneficiary in said insurance trust in place of the beneficiaries * * * originally named in said deed of trust." On the same day the decedent, the trustees and Cora Robinson agreed "to cancel, destroy and revoke said insurance trust." Thereupon, they did "assign, transfer and convey" the policies to decedent.
Decedent made the 1929 change of beneficiary on each of the ten policies by executing a form (varying only as to policy number) reading as follows:2
On May 8, 1929, the decedent executed the above mentioned trust agreement, naming as trustees, Goodridge and McFadon. It recited that "the Settlor has delivered to the Trustees the following described policies of insurance" and "has caused the death benefits thereunder to be made payable to the Trustees, the proceeds of which policies * * * to be held and distributed as hereinafter set forth." It did not contain any language of assignment, conveyance or transfer as did the other instruments described above. Another difference between this agreement and that of January 29, 1926 was that, although the beneficiaries under the two trusts were identical, under the 1929 trust the determination of the proportionate share of each was left to the uncontrolled discretion of the trustee, whereas under the prior trust the shares were specifically proportioned. Only one of the trustees was the same. The 1929 trust instrument did not reserve to the decedent the power to alter the duties of the trustees or to change the beneficiaries of the trust.
Decedent died on September 15, 1944.
There seems to be no dispute between the parties hereto that the provisions of the 1929 trust agreement standing alone would, under Illinois law, constitute an irrevocable trust. Plaintiffs deem it significant that decedent reserved powers of revocation in the 1926 trust agreement but that such powers are not included in the 1929 trust agreement.
Defendant takes the position that decedent retained "incidents of ownership" in the policies and the proceeds of these policies were, therefore, properly included in the decedent's gross estate under section 811(g) (2) of the Internal Revenue Code of 1939. All this plaintiffs dispute.
Section 811 of the Internal Revenue Code of 19395 provides, in part:
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