
    GILLESPIE et al. v. HEINER, Collector of Internal Revenue.
    District Court, W. D. Pennsylvania.
    June 12, 1928.
    No. 5623.
    Internal revenue <@=8(1) — Estate tax resulting from inclusion in estate of procee'ds of life insurance policies issued before April 16, 1919, held illegally collected (Revenue Act 1926, § 302(g); 26 USCA § 1094(g).
    Estate tax exacted by reason of inclusion in decedent’s estate of amounts receivable by beneficiaries as insurance under life insurance policies on decedent’s life, which were issued between October 7, 1904, and April 16, 1919, helé illegally collected under Revenue Act 1926, § 302(g), 26 USCA § 1094(g).
    At Law. Action by Anna R. D. Gillespie and others, executors of the estate of David L. Gillespie, deceased, against Daniel B. Heiner, Collector of Internal Revenue for the Twenty-Third District of Pennsylvania.
    Judgment for plaintiffs.
    Smith, Buchanan, Scott & Gordon, of Pittsburgh, Pa., for plaintiffs.
    J. D. Meyer, U. S. Atty., and W. J. Aiken, Asst. U. S. Atty., both of Pittsburgh, Pa., and J. A. McCann, Sp. Asst. Bureau of Internal Revenue, of Washington, D. C., for defendant.
   SCHOONMAKER, District Judge.

This is an action to recover an estate tax of $69,-362.90, alleged to have been illegally exacted under the provisions of section 302(g) of the Revenue Act of 1926 (26 USCA § 1094 (g), as a tax on several amounts receivable by beneficiaries as insurance under policies taken out by the decedent in his lifetime to. the extent of the excess thereof over $40,000. By stipulation the ease was heard without a jury upon the statement of daim and the affidavit of defense, which admits all the allegations of fact in the statement of claim and merely denies the legal conclusions as to the claim right of the plaintiff to recover.

This case presents precisely the same question that was decided by Judge Thomson, of this district, in the ease of Frick v. Lewellyn, 298 F. 803, affirmed 268 U. S. 238, 45 S. Ct. 487, 69 L. Ed. 934; and in the case of Grandin v. Heiner, 27 F.(2d) 454, which we decided on December 7, 1927, at 3596 Law.

Under these authorities we hold that this tax of $69,362.90, exacted of the plaintiff by reason of the inclusion in the estate of the decedent of the amounts receivable by beneficiaries as insurance under policies of insurance on life of decedent, which were issued at various dates from October 7, 1904, to April 16, 1919, was illegally collected, and that the plaintiffs are entitled to recover it back.

Let an order for judgment be submitted accordingly.  