The opinion
Disney, /., dissenting: I can not agree with the majority opinion. It relies in crucial part upon two ideas: First, that the gifts were ineffective because subject to restriction upon alienation by the donee; and, second, because the gift was subject to the contingency that in case of the death of the donee prior to that of the donor the donor should succeed to the interest. Neither of these provisions affects the reality of gift. On the subject of qualification of, or forbidding alienation in a gift, 38 C. J. S. 816 says:
Tlie donor of a gift may stipulate that his bounty shall be enjoyed only by those to whom he intends to extend it; and he ma.v withhold from Hie donee the right to alienate the subject of the gift.
Likewise, as to succession by the donor on the death of the donee, 38 C. J. S. 817 says:
Donee’s death before that of donor. A gift is no less valid because accompanied by words indicating that, though presently vested, it is subject to defeasance by the death of the donee before the donor’s death.
The case there cited, People's Trust Co. v. Dickson, 214 N. Y. S. 73, says on the subject:
* * * Nor would it seem to be less a gift because accompanied by words indicating that it was “provisional” as in the case of Flint v. Ruthravff, supra, or so expressed as to make it, though presently vested, subject to defeasance by the death of the donee before the donor, as surely a gift by will or formal deed of trust might be expressed. Matter of Seaman’s Estate, 41 N. E. 401 , 147 N. Y. 69 , at page 74; Matter of Green’s Estate, 47 N. E. 292 , 153 N. Y. 223 , at page 228. * * *
If it be suggested that the inalienability, taken together with the provision for reversion to surviving husband, effects invalidity of gift, I remember that two times nothing is nothing.
I conclude that the gifts were fully effective and therefore that the petitioner may not be taxed upon all the income produced by the partnership. The assets of which the wives of petitioner and his partner received gifts were of a value of approximately $272,000. Those assets were engaged in the laundry business. I can not subscribe to the idea that the entire income of the businesses produced with such assets, though in connection with personal services, may properly or logically all be laid upon the donors. They did not merely assign income. Burnet v. Leininger, 285 U. S. 136 , as I see it, helps not at all. Therein, a partner was taxed upon his partnership share which he had assigned to his wife, on the ground that the statute required taxation to the partner, and that a mere arrangement between the husband and his wife, not with the partnership, did not constitute her a partner. I dissent.