Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiffs, as trustees under the will of Edward L. Meierhof, sued the defendant, a Collector of Internal Revenue, to recover an overpayment of the estate taxes which were assessed by the Commissioner. They were granted a recovery of $86.21 plus interest and costs because income between the dates of death and the date of optional valuation had been improperly included in the gross estate. Maass v. Higgins, 312 U.S. 443, 61 S. Ct. 631, 85 L. Ed. 940, 132 A.L.R. 1035. The plaintiffs appeal from the judgment so far as it failed to allow a recovery of taxes on an over-assessment occasioned by the refusal of the Commissioner to deduct from the gross estate the worth of a contingent charitable bequest to Columbia University which had a conceded actuarial value of $9,836.70.
The testator created a trust under the third paragraph of his will in which a fund of $30,000 was to be disposed of as follows:
The income of the fund was to be paid to decedent's sister Esther Hoffman, for life.
If upon the death of Esther Hoffman, her husband Sol Hoffman should not be then living, the corpus of the trust was to be paid to decedent's widow, Lina H. Meierhof, if she should then be living, and if not then living, the fund was to be paid to Columbia University.
If upon the death of Esther Hoffman, Sol Hoffman should then be living, one-half of the fund was to be held in trust for Sol Hoffman for the balance of his life. Upon his death, the one-half was to be paid to Lina H. Meierhof, if then living, or if not then living, to Columbia University. The other one-half of the fund was to be paid upon the death of Esther Hoffman to Mrs. Meierhof, if then living, or if not then living, to Columbia University.
At the time of the decedent's death on October 25, 1937, his sister Esther Hoffman was seventy-four years of age, her husband, Sol Hoffman, seventy-nine and the decedent's wife Lina Meierhof, seventy-one. Sol Hoffman died October 10, 1941; Mrs. Hoffman and Mrs. Meierhof are still living. The court below affirmed the action of the Commissioner in assessing a tax and sought to support it by the following findings:
"22. That the normal life expectancy of Lina H. Meierhof was greater than the normal life expectancies of either Esther Hoffman or Sol Hoffman.
"23. That the charitable bequest to Columbia University was contingent upon the death of a younger designated person prior to the death of two older designated persons.
"24.That it cannot be determined whether the contingent charitable bequest to Columbia University would ultimately take effect or not.
"25. That there was no practical certainty that the contingent charitable bequest to Columbia University would ever take effect.
"26. That the contingency dependent upon which the bequest to Columbia University was to take ...