quate and full consideration in money and money's worth is a question of fact. The agreement recites that the parties contemplate marriage and provides that the trust shall be set up only in the event of and following the marriage. Petitioner was obligated to create the trust upon consideration of the relinquishment of marital rights and did so, and hence this is not a case involving marriage alone as consideration. Through the tables of mortality, the value of a survivor's right in a fixed sum receivable at the death of a second party may be adequately calculated. By adopting present value as the accepted future value, the uncertainty inherent in fluctuations of an estate's value is theoretically eliminated. The trial court thus found the present value of the release of the taxpayer's estate from the wife's survivorship rights largely exceeded the amount paid by the taxpayer and that the transactions between the parties were made in good faith for business reasons and not an attempt to evade or avoid taxes. Thus the District Court findings bring this transaction within the express language of the applicable Treasury Regulation.1 Merrill v. Fahs, 51 F. Supp. 120. Its determination, we think, also makes it clear that the husband's estate

1 Treasury Regulations 79 (1936 ed.):

"Art. 8. Transfers for a consideration in money or money's worth.— Transfers reached by the statute are not confined to those only which, being without a valuable consideration, accord with the common law concept of gifts, but embrace as well sales, exchanges, and other dispositions of property for a consideration in money or money's worth to the extent that the value of the property transferred by the donor exceeds the value of the consideration given therefor. However, a sale, exchange, or other transfer of property made in the ordinary course of business (a transaction which is bona fide, at arm's length, and free from any donative intent), will be considered as made for an adequate and full consideration in money or money's worth. A consideration not reducible to a money value, as love and affection, promise of marriage, etc., is to be wholly disregarded, and the entire value of the property transferred constitutes the amount of the gift."

received practical advantages of value in excess of the cost paid. See Henderson v. Usher, 125 Fla. 709, 727, 170 So. 846.

The question of the taxability as gifts of transfers to spouses in consideration of the release of marital rights had been a matter of dispute in courts before the passage of the Revenue Act of 1932, § 503, 47 Stat. 169, 247.2 Congress in the 1932 act, § 804, declared that a transfer of marital rights should not be "consideration in 'money or money's worth'" under the estate tax provisions. Thus Congress put beyond any question the liability of transferors for estate taxes where marital rights were the consideration for the transfer. On the other hand, in the same 1932 Revenue Act the language of the gift tax section, § 503, did not have a provision forbidding the valuation of marital rights. Consequently, § 503 as interpreted by Regulations 79, Art. 8, permits the treatment of the relinquishment of such rights, not donative in intent or effect, as "money's worth" consideration for property transferred. It seems to us clear that with the judicial history of the difficulties in estate and gift taxes as to the transfer of marital rights, when Congress expressly provided that relinquishment of dower, curtesy or other statutory estate was not "consideration" for estate tax purposes and left the gift tax provision without such a limitation, it intended that these rights be accorded a different treatment under these sections. This has been the determination of the Tax Court.3

In our view this judgment should be reversed.

The CHIEF JUSTICE and MR. JUSTICE DOUGLAS join in this dissent.

2 Ferguson v. Dickson, 300 F. 961; McCaughn v. Carver, 19 F. 2d 126; Stubblefield v. United States, 79 Ct. Cls. 268, 6 F. Supp. 440. 3 Bristol v. Commissioner, 42 B. T. A. 263; Jones v. Commissioner, 1 T. C. 1207; Wemyss v. Commissioner, 2 T. C. 876, 881.

Opinion of the Court.

324 U.S.

DRUMMOND v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.

No. 520. Argued February 7, 8, 1945.-Decided March 5, 1945.

1. A suit by the United States to enforce restrictions on Indian lands is not barred by a prior judgment in proceedings in which the United States was not formally a party, but in which the Secretary of the Interior had authorized employment and approved the fees of counsel for the Indian. P. 317.

2. A mortgage of lands inherited from an Osage allottee, given by the heir prior to the state court decree adjudging heirship, was invalid under § 7 of the Act of April 18, 1912, even though the heir had a certificate of competency at the time of the execution of the mortgage. P. 318.

3. Within the meaning of § 7 of the Act of April 18, 1912, lands inherited from an Osage allottee, though an incompetent, are "turned over" to the heir when the probate court decrees heirship. P. 319. 144 F. 2d 375, affirmed.

CERTIORARI, 323 U. S. 699, to review the reversal of a judgment against the United States in a suit brought by it to cancel a mortgage and to quiet title to lands.

Messrs. Roy St. Lewis and Chas. R. Gray for petitioner.

Mr. Roger P. Marquis, with whom Solicitor General Fahy, Messrs. J. Edward Williams and Norman MacDonald were on the brief, for the United States.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

Mamie Fletcher Pitts, a full-blood Osage Indian, died on May 24, 1937, leaving land allotted to her as a member of her tribe. Her husband, George Pitts, also a fullblood Osage, was appointed administrator of her estate in appropriate proceedings in an Oklahoma court. His certificate of competency which had been granted him in

1910, § 2, Seventh, Act of June 28, 1906, 34 Stat. 539, 542, was revoked by the Secretary of the Interior on June 24, 1938. On September 9, 1938, he was adjudged to be the sole heir by the Oklahoma court, which entered an order directing distribution of Mamie's estate to him. Prior to that order, however, on July 12, 1937, Pitts had executed a mortgage of his wife's land to Drummond, the petitioner, to secure a contemporaneous promissory note. It is the validity of this mortgage, under the relevant Indian legislation, which is in controversy.

Petitioner in 1939 instituted a suit against Pitts in the state court to recover judgment on the note and to foreclose the mortgage. In that litigation Pitts, asserting the invalidity of the mortgage, was represented by a private attorney. Foreclosure was decreed, and this was upheld in the Supreme Court of Oklahoma. Pitts v. Drummond, 189 Okla. 574, 118 P. 2d 244.1 Thereafter, the United States brought the present action in its own right and on behalf of Pitts to cancel the mortgage and to quiet title. The petitioner succeeded in the District Court, but the judgment was reversed by the Circuit Court of Appeals for the Tenth Circuit. 144 F. 2d 375. The conflict in result between the decision below and the earlier decision of the Oklahoma Supreme Court led us to grant certiorari, 323 U. S. 699.

A claim of res judicata meets us at the outset. Petitioner contends that the adjudication in Pitts v. Drummond, supra, binds the United States. To escape from the rule that the United States is not precluded from enforcing restrictions on Indian lands by any prior judgment in proceedings to which it was a stranger, Bowling v. United States, 233 U. S. 528, 534-535; United States v. Hellard, 322 U. S. 363, 366; and see Cohen, Handbook of Federal

1 To complete the history of this litigation we note that certiorari was denied, 315 U. S. 814.

Indian Law (1941) 369, petitioner relies on the authorization by the Secretary of the Interior of the employment of Pitts' attorney and the approval of the latter's fee. If the United States in fact employs counsel to represent its interest in a litigation or otherwise actively aids in its conduct, it is properly enough deemed to be a party and not a stranger to the litigation and bound by its results. Compare United States v. Candelaria, 271 U. S. 432; 16 F. 2d 559, with Logan v. United States, 58 F. 2d 697. But to bind the United States when it is not formally a party, it must have a laboring oar in a controversy. This is not to be inferred merely because the Secretary of the Interior enables an incompetent Indian to protect his interests.

This brings us to the merits of the controversy-the validity of the mortgage given by Pitts as security for a loan before the Oklahoma court adjudged him to be his wife's heir. The decision turns on the construction of the Act of April 18, 1912, and more particularly on §§ 6 and 7, 37 Stat. 86. Section 6, so far as here relevant, removes restrictions on alienation of land inherited by heirs who have certificates of competency or who are not tribal members. After providing that allotment lands or funds shall not be liable or subjected to any claim arising prior to the granting of a certificate of competency, § 7 continues: "That no lands or moneys inherited from Osage allottees shall be subject to or be taken or sold to secure the payment of any indebtedness incurred by such heir prior to the time such lands and moneys are turned over to such heirs." These provisions have the characteristic infelicity of draftsmanship in Indian legislation which is such a fertile breeder of wasteful litigation. But the language, together with the light shed by the relevant Senate Report, makes the meaning clear enough.