of the collector on April 14. The record shows that the collector's office was located in the same public building which housed the post office department. The collector rented a post office box in that building. The understanding and practice was that the collector's mail (except special delivery mail) was not to be delivered by the post office to the collector's office room, but was to be placed in that box or in an adjacent hamper or truck provided by the collector, and would be called for by him at such times as he might find convenient, whether at 2:30 o'clock in the afternoon or at midnight. Thus, when the return in question had reached the collector's post office box, it had gone as far on its way to the collector as the post office department would take it. Thereafter it was subject to the control of the collector and available to him at any time. Under the circumstances shown here, we conclude that the return was mailed in ample time to reach the office of the collector on the due date, and did reach the office of the collector on that date and was therefore timely filed within the meaning of the controlling regulation.

We, therefore, come to respondent's contention that the return filed April 14 by the transferor estate was not a return within the meaning of the statute because it was signed under oath by only one of the two executors of the estate, and therefore does not comply with the provisions of article 64, Regulations 80, which says: "If there is more than one executor or administrator the return must be made jointly by all." No case has been cited to us, nor has any come to our attention, wherein this sentence in respondent's regulation has been construed by the courts.

The statute, which we have already quoted, merely provides that "the executor shall a return under oath.

file

The statute, in referring here and elsewhere to "the executor" in the singular, merely recognized the unity in law of the executorship, regardless of how many individual coexecutors there may be. This unity is a principle embedded in our jurisprudence. As it is stated in 21 American Jurisprudence, Executors and Administrators, sec. 751: "The general rule is that several co-administrators or co-executors' are, in law, only one person representing the testator, and acts done by one in reference to the administration of the testator's goods are deemed the acts of all, inasmuch as they have a joint and entire authority over the whole property belonging to the estate." This principle is recognized in New York. See In re Henbach's Will, 300 N. Y. Supp. 810, wherein it is stated: "[Coexecutors] constitute an entity, and are regarded in law as an individual person. Consequently, the acts of any one of them, in respect to the administration of estates (under their charge) are deemed to be the acts of all for they have all a joint and entire authority over the whole property."

These authorities indicate that one corollary of the principle of the unity of the executorship is that one coexecutor is authorized to act in all usual matters of administration on behalf of all the coexecutors jointly. His act is equivalent to the joint act of all. In re Appel, 192 N. Y. Supp. 136; In re Junkerfield's Estate, 269 N. Y. Supp. 514; Irwin v. Larson, 94 Fed. (2d) 187.

It should be pointed out that the regulation in question provides that "the return must be made by all jointly" (emphasis supplied), and that there is no requirement that the return be signed under oath by each of the individual coexecutors. The purpose of this regulation would seem to be to prevent the filing of a separate return by each coexecutor and to provide for the filing of only one return by all, thus recognizing, as the statute does, the unity of the executorship.

Pursuant to the authorities above cited, we conclude that an estate tax return made in the name and on behalf of two coexecutors, and signed by one coexecutor is a "return made jointly" within the meaning of the regulation.

Even if we are in error in this interpretation of the regulation, we would be unable to conclude that the return in question filed in the name of both executors, and never denied validity on the ground of signature by the Commissioner until some five years later, was not a return within the meaning of the statute. The situation under such an interpretation of the regulation seems similar to the ordinary procedural requirement that in suits at law all the coexecutors should join as plaintiffs or be joined as defendants. Where this is not done, the remedy is by plea in abatement, and if no such plea is filed the defect is deemed to be waived. Irwin v. Larson, supra.

One reason why we are persuaded that our construction of the regulation is correct is that if it were construed otherwise a serious question would arise as to its validity.

In Baldwin v. Commissioner, 94 Fed. (2d) 355, the Circuit Court of Appeals considered the validity of a rule of the United States Board of Tax Appeals which, although later changed, at that time prescribed that "A majority of the fiduciaries shall either sign or verify the petition In that case only one of two executors had verified the petition and we accordingly dismissed it. The Circuit Court in reversing said:

By the provisions of 26 U. S. C. A. § 422 “the executor" is charged with the payment of the tax. And he is liable therefor both personally, and in his representative capacity. 26 U. S. C. A. § 425; and see 31 U. S. C. A. § 192. It will be noted that these statutes imposing liability employ, as does the statute providing for redetermination by the Board of a claimed deficiency, the term "the executor." This term should be given the same meaning in both connections. If each of several executors is severally liable as "the executor", then each should be allowed to file a petition as "the executor."

However, it would seem that the reasoning of the Circuit Court would be equally applicable to the instant case, where one of the two executors has filed a return on behalf of the estate which the statute has required of "the executor." Upon the same reasoning it might successfully be argued that the sentence of the regulation in question here as applied to the facts of the instant case is invalid and not controlling.

For the reasons given above we conclude that a valid election was made by the executor of decedent's estate to have the estate valued as of a date one year after decedent's death.

Reviewed by the Court.

Decision will be entered under Rule 50.

BELLE GOLDSTINE FRANKEL, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 111676. Promulgated February 9, 1944.

Petitioner, a widow, elected to take under the will of her deceased husband. He had created a testamentary trust to which a substantial portion of his property was bequeathed primarily for petitioner's benefit. The trust instrument directs that after the payment of expenses, taxes, etc., and the payment of $100 per month to decedent's sister, all the rest, residue, and remainder of the net income derived from the trust property shall be paid to his wife in such installments and at such times as she may request. It provides further that it is the desire of the settlor that his wife shall have and enjoy, during each year of her natural life, a net income which together with the net annual income of her own property shall be not less than $20,000 per annum, and should the net income in any one year which the wife may be entitled to receive from the trust estate, when added to the net annual income of her own property, be less than $20,000, then the net income for that year shall be augmented, if the wife shall so request, by adding thereto from the principal of the trust estate such amount as may be necessary to produce $20,000 per annum. Held that petitioner is an income beneficiary and therefore the amounts received by her should be included in her gross income under Helvering v. Butterworth, 290 U. S. 365. The rule applied by the Supreme Court in the companion case of Helvering v. Pardee held to be inapplicable.

A. F. Schaetzle, Esq., for the petitioner.

W. Frank Gibbs, Esq., for the respondent.

OPINION.

MELLOTT, Judge: The Commissioner determined deficiencies in income tax for the calendar years 1938 and 1939 in the respective amounts of $548.10 and $363.93. Petitioner alleges that there are no deficiencies

in tax and that she has overpaid her taxes in the respective amounts of $4,675.16 and $4,691.48.

The four assignments of error set out in the petition raise two questions, one of which has been settled by the parties. The sole issue to be decided is whether any amount is to be included in petitioner's gross income in connection with amounts received by her from a testamentary trust, created under the will of her husband.

All of the facts have been stipulated and are found accordingly. Effect will be given to the agreement of the parties anent the dividends in the settlement under Rule 50. Briefly it is that the correct amounts of dividends received from the Harris-Emery Co. by petitioner and the testamentary trust are as follows:

rather than the amounts shown in the returns or in the notice of deficiency.

Summarizing the facts applicable to the issue to be decided, petitioner, a resident of Des Moines, Iowa, filed her returns for the calendar years with the collector of internal revenue at Des Moines. She is the widow of Nathan Frankel, who died testate in 1935, a resident of Des Moines. She elected to take under his will.

Frankel, in his will, created a trust, to which he gave "all the rest, residue and remainder" of his property after making several specific bequests. He named his wife, his brother Henry, and his brother-inlaw Moie Cook and their successors in trust as trustees. The trust is to continue during his wife's (petitioner's) lifetime "and thereafter to be closed as soon as practicable, but not later than one year

after" her death.

*

The trustees are given the power to hold, possess, invest, and reinvest the trust property and to demand and receive all income or profits therefrom.

Item XII of the will (article or paragraph 4 of the trust) provides as follows:

The net income derived from my said Trust property and estate shall be used, applied and distributed by my said Trustees as follows:

First: To the payment of expenses, incidental to the protection and care, insurance, county, city, state and federal taxes, repair and maintenance of said trust property and the cost of the proper administration of the Trust Estate. Second: For and during the period of her natural life, my said Trustees shall pay to my Sister, Henrietta Frankel Pfeifer, if she shall survive me, the sum of One Hundred Dollars ($100.00) per month.

Third: For and during the period of her natural life, my said Trustees shall pay to my beloved wife, Belle G. Frankel, if she shall survive me, all the rest, residue and remainder of the said net income derived from said Trust Property and Estate in such installments and at such times as my said wife may request, provided, however, and it is my will that in any event my wife shall have and enjoy during each year of her natural life, a net income which together with the net annual income of her own property, shall be not less then Twenty Thousand Dollars ($20,000.00) per annum and should the net income in any one year to which my said wife may be entitled to receive from my Trust Estate, when added to the net annual income of her own property, be less than Twenty Thousand Dollars ($20,000.00), then the net income for that year shall be augmented, if my wife shall so request, by adding thereto from the principal of any said Trust Estate such amount or amounts as may be necessary to produce the sum of Twenty Thousand Dollars ($20,000.00), which shall be paid to my beloved wife as above provided.

In accordance with the will, the trustees named therein duly qualified as such and have administered its affairs according to the provisions thereof.

On March 15, 1939, petitioner filed a Federal income tax return for the calendar year 1938 showing taxable net income in the amount of $35,660.33 and paid a tax in the sum of $5,298.46. The return reports income from the trust in the sum of $18,265.08 and also shows dividends in the sum of $22,913.90. For the year 1939 petitioner filed a return showing taxable net income in the amount of $35,842.82 and paid a tax in the sum of $5,319.87. The return reports income from the trust in the sum of $18,985.20 and also shows dividends in the sum of $21,503.81. Returns were filed by the trust showing the payment to petitioner of the same sums as reported by her and the payment of $1,200 during each year to Henrietta F. Pfeifer. The parties are now in agreement that the correct net income of the trust for the years 1938 and 1939 is $21,756.70 and $22,348.84, respectively, and, after deducting therefrom the sum of $1,200 paid in each year to the settlor's sister, who was living throughout the two years, there remain the respective amounts of $20,556.70 and $21,148.84 distributed to petitioner. The difference between the latter amounts and the amounts reported ($35,660.33 less $20,556.70 and $35,842.82 less $21,148.84) or $15,103.63 and $14,693.98 represent the net income received by petitioner from her own property, i. e., from sources other than the trust. Additional tax was assessed against, and paid by, petitioner on November 13, 1940, in the amount of $1,172.93 for 1938 and $934.81 for 1939. Claims for refund in the amount of $4,694.98 and $4,691.48 for the years 1938 and 1939 were filed on March 3, 1941. No specific denial of either has been made except as may be covered by the deficiency notice. Notice of deficiency was dated April 16, 1942, and petition was filed herein on June 25, 1942. All payments of tax were made within three years before the claims for refund were filed.

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