Heiner v. Donnan, 4704.

• Decision Date: 25 August 1932
• Docket Number: No. 4704.,4704.
• Citation: 61 F.2d 113
• Parties: HEINER, Collector of Internal Revenue, v. DONNAN et al.
• Court: U.S. Court of Appeals — Third Circuit

61 F.2d 113 (1932)

HEINER, Collector of Internal Revenue, v. DONNAN et al.

No. 4704.

Circuit Court of Appeals, Third Circuit.

August 25, 1932.

Louis E. Graham, U. S. Atty., and John A. McCann, both of Pittsburgh, Pa., and William T. Sabine, Sp. Atty., Bureau of Internal Revenue, and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, both of Washington, D. C., for appellant.

Wm. G. Heiner, of Pittsburgh, Pa., for appellees.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the court below the representatives of the estate of John W. Donnan brought suit against the collector of internal revenue to collect taxes alleged to have been unjustly assessed and paid under protest. Trial by jury was waived by stipulation of record. So far as material to the issue before us, the trial judge found the facts in reference to two advancements made to his two sons and a trust settlement in favor of all his children, as follows:

"XXIII. The motive which induced and impelled the decedent to advance the amounts of $5,000 and $32,500 to his two sons was the gratification of a desire to provide them with the means to purchase residential properties for themselves during his lifetime.

"XXIV. The decedent did not make the advancements of $5,000 and $32,500 to his two sons in contemplation of death.

"XXV. The trust indenture dated March 1, 1927, was a complete and irrevocable gift from the decedent to his four children during the lifetime of the decedent.

"XXVI. The decedent was not induced, or impelled to make the trust indenture of March 1, 1927, by a contemplation of death arising from any bodily or mental condition."

"XXX. One of the motives which induced and impelled the decedent to make the trust indenture of March 1, 1927, was the gratification of a desire to fulfil a moral obligation to equalize his bounty among his four children, by the correction of a habit of discriminating financially against his three sons in favor of his daughter.

"XXXI. One of the motives which induced and impelled the decedent to make the trust indenture of March 1, 1927, was the gratification of a desire to continue a policy, begun in 1911, of making liberal gifts to his children during his lifetime, he being a widower and financially able to make such gifts.

"XXXII. One of the motives which induced and impelled the decedent to make the trust indenture of March 1, 1927, was the gratification of a desire to give his children additional financial responsibilities and to see how they would manage this particular trust under his advice, he being satisfied and pleased with the way they had handled two former trust gifts.

"XXXIII. One of the motives which induced and impelled the decedent to make the trust indenture of March 1, 1927, was the gratification of a desire to see and have all his children, with their families, independently established with complacencies of their own during his lifetime.

"XXXIV. The decedent did not make the trust indenture dated March 1, 1927, in contemplation of death.

"XXXV. One of the motives which induced and impelled the decedent to make the trust indenture of March 1, 1927, was his interest and belief in trusts generally and his desire to be an example in his own affairs and build up the trust department of the bank which was then only in its infancy.

"XXXVI. John W. Donnan, in making the transfers of property hereinbefore mentioned, had no motive of making a distribution of such property as at death, but desired to attain objects sought by him in his lifetime."

Where trial by jury is waived, the findings of fact by the trial judge are conclusive on this court if there was evidence to warrant such finding. The court having affirmatively found the instruments here involved were not made in contemplation of death, the case resolves itself into the question whether there was evidence to support such finding. Without therefore discussing the cases and statutes set forth in both briefs, we confine ourselves to the controlling question whether there was evidence to support the finding of the trial judge. We are of opinion there was, and we base such holding on these facts and considerations:

John W. Donnan died December 23, 1928, at the age of eighty-three years. The immediate cause of his death was an attack of flu-pneumonia, of which there was an epidemic in his locality and which caused his death after...