Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit Judges.
Mary Tower English, plaintiff-appellant,*fn1 the widow-beneficiary of Dr. Calvin H. English, brought suit in the District Court against the United States of America, defendant-appellee, for recovery of $90,331.04 she paid as a deficiency estate tax assessment and interest in the estate of the decedent. Plaintiff's claim for refund had been disallowed. The District Court denied recovery and plaintiff appealed.
The contested issues are (1) whether the property held jointly by decedent and plaintiff at the former's death is includable in his gross estate under Section 811(e) of the Internal Revenue Code of 1939 (26 U.S.C. 1952 ed., § 811) and (2) whether gifts of stock and an automobile made to decedent's daughter and son-inlaw were as to decedent's interest made in contemplation of death and includable in his gross estate under Section 811(c) of the Internal Revenue Code of 1939 (26 U.S.C. 1952 ed., § 811).
The decedent died in 1948 at the age of ninety-one. All of his property was held jointly with right of survivorship with plaintiff. On April 8, 1944 a property settlement was entered into by decedent and plaintiff under which all of their property not already so held was placed in joint tenancy. The decedent and plaintiff had maintained a joint bank account. Items held jointly at decedent's death included stock of the Lincoln National Life Insurance Company,*fn2 stock of a manufacturing company, U.S. Government bonds, bank stock and the bank account.
In 1929 decedent made a gift of 3000 shares of Lincoln stock to plaintiff, an additional 565 shares were acquired in plaintiff's sole name, purchased by decedent from the joint bank account, during the period ending April 5, 1938, and between September 30, 1938 and October 17, 1941, 513 shares of Lincoln were acquired in the names of decedent and plaintiff as joint tenants. Lincoln declared stock dividends in 1943 and 1946, the dividend shares being issued in the names of the persons holding the original shares. The manufacturing company stock, the government bonds and bank stock were all originally acquired by decedent and plaintiff in their joint names as joint tenants and were purchased from the joint bank account and from proceeds of the sale of jointly held Lincoln stock.
At the time of the 1944 property settlement agreement the Lincoln stock owned and held by the plaintiff individually consisted of the 3000 shares given her by decedent in 1929, the 565 additional shares he purchased in her name up to and including April 5, 1938, together with the shares issued to plaintiff individually as a result of the 1943 stock dividend. These shares, a total of 4,991 belonging to the plaintiff and 5,467 shares of Lincoln stock belonging to the decedent individually were placed in the name of decedent and plaintiff as joint tenants pursuant to the 1944 agreement.
The decedent and the plaintiff gave one hundred shares of the Lincoln stock which they held jointly to their daughter and son-in-law on December 21, 1946 and another one hundred shares of the same stock was also given to them on February 6, 1947. In the fall of 1947 a gift of an automobile was made to the daughter and son-in-law. These gifts were made within two years of decedent's death and while he was confined to bed during his last illness.
The plaintiff had no income ther than the cash dividends she received on stock. These dividends were deposited in the joint bank account. The plaintiff testified that the disbursements she made from the joint bank account were for "personal use and the home"; that the decedent made all disbursements for the purchase of stock. The plaintiff testified that she did not know how much she had deposited or had withdrawn from the joint bank account and had no record thereof.
The District Court found that the plaintiff failed to prove that she contributed anything in money or money's worth toward the purchase price of the Lincoln stock or other items which were held in joint tenancy at the time of decedent's death. The court further found that the gifts of the two blocks of Lincoln stock and the automobile were made in contemplation of death and that all the items involved were properly includable in the gross estate of decedent.
Section 811 of the Internal Revenue Code of 1939 provides as follows with respect to property held in joint tenancy:
"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, except real property situated outside of the United States -
"(1) To the extent of the interest therein as joint tenants by the decedent and any other person, or as tenants by the entirety by the decedent and spouse, or deposited, with any person carrying on the banking business, in their joint names and payable to either or the survivor, except such part thereof as may be shown to have originally belonged to such other person and never to have been received or acquired by the latter from the decedent for less than an adequate and full consideration in money or money's worth: Provided, that where such property or any part thereof, or part of the consideration with which such property was acquired, is shown to have been at any time acquired by such other person from the decedent for less than an adequate and ...