The opinion
L. HAND, Circuit Judge
(dissenting).
The only question before us is whether the consideration of his first wife’s claim for alimony was the surrender of any “marital rights in the decedent’s property or estate”. Laying aside the dower which was trifling, what she gave up was her right to support by him during their joint lives; because, although his promise did indeed extend beyond his death, that we may disregard, for it is only the consideration that matters. It seems to me a perversion of terms to say that a wife’s right to support is a “right in the decedent’s property”, like dower. She can of course collect it out of his property, but so can any other creditor collect his claim; the words mean something more than that, or they mean nothing at all. I do not think that their meaning is far to seek. Section 302(b) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev. Code, § 811(b), had included in the gross estate dower, curtesy and any statutory substitutes for either; § 804 of the Act of 1932 provided, primarily at any rate, against the taxpayer’s escape by creating a personal claim in consideration of the surrender of these rights. Had the section stopped there, I submit that there could have been no possible doubt that it was directed only against such an evasion. I agree that we must find some added purpose in the added words, and that too I think is fairly apparent: they were to include any marital jus in re which was not dower or curtesy, or their statutory substitutes. It is true that I cannot think of any, but that seems to me neither conclusive, nor important; statutory draughtsmen often provide against possibilities which have not yet arisen. The primary purpose of the section as a whole, the coupling of the phrase in question with dower and curtesy, the form of its concluding clause and the redundancy of that clause, if no more was meant than that the claim should be collectible from the spouse’s assets; all these seem to me effectively to conspire against the Board’s position.
Moreover, I think that the argument does not end there, because of the consequences of construing the phrase otherwise. If a husband dies, having deserted his wife and failed to provide for her, her claim against him is certainly deductible; it is a “claim” within § 303 (a) (1) of the Act of 1926, 26 U.S.C.A. Int.Rev.Acts, and it is not within § 804 of the Act of 1932, because it is not based upon a surrender of any marital rights, but is the right itself. The same is true of arrears of alimony fixed by a decree of divorce. But if the Board’s view is to prevail, the same claim is not deductible, if the spouses have commuted it by agreement; and perhaps also if such an agreement has been incorporated into a decree. It is incredible that Congress should have attached that consequence to the circumstance — wholly irrelevant for taxing purposes — that the payments have been made definite, whether they are limited to the joint lives of the spouses, or are extended at reduced amounts beyond the husband’s death. If the words could not be otherwise satisfied, we should of course have to say that they went even so far as that, but, as I think I have shown, they are ill chosen for such a meaning, were the scales in balance, which they certainly are not.
Before it decided the case at bar the Board itself had been of several minds upon the question (In re Phillips, 36 B.T.A. 752 ; In re Young, 39 B.T.A. 230 ; In re Brokaw, 39 B.T.A. 783 ; In re Weiser, 39 B.T.A. 1144 ), but I think that in the end it has come out wrong.