
    Herbert W. Tullgren, Petitioner, v. Commissioner of Internal Revenue, Respondent. S. Minard Tullgren, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket Nos. 9738, 32599, 32600.
    Promulgated December 26, 1928.
    
      
      Frcmh Horrrmth, Esq., for the petitioners.
    
      J. F. Greaney, Esq., for the respondent.
   OPINION.

Trttssell :

By his will petitioners’ father bequeathed to his widow an annuity of $6,000 per year, charging that it be paid by petitioners. By a subsequent clause of the will he devised to these petitioners certain real property “ subject ” to the payment of the annuity mentioned. The balance of his estate he gave to petitioners, specifically excepting it from charge on account of the annuity.

By bequests of this character the question is raised as to whether the payment of the annuity is to be construed as a condition precedent or subsequent or as a charge upon the land, and by the great weight of authority it is held that it is not a condition precedent unless expressly so directed by the will in language which shows such to have been the testator’s intention, and that in the absence of an evidenced intention that failure of the devisee to pay the annuity should work a forfeiture it will not be construed as a condition subsequent but merely a charge upon the land. Winn v. Tabernacle Infirmary, 153 Ga. 380; 32 LRA (NS) 512; 69 S. E. 557; Alexander v. Alexander, 156 Mo. 413; 57 S. W. 110; McNally v. McNally, 23 R. I. 180; 49 Atl. 699; Hawkins v. Hansen, 92 Kans. 740; LRA 1915 A 95; 142 Pac. 280; Burdis v. Burdis, 96 Va. 81; 30 S. E. 462; Schrader v. Schrader, 158 Iowa 85; 139 N. W. 160; Pennington v. Pennington, 70 Md. 418; 3 LRA 816; 17 Atl. 329; Sherman v. American Congregational Assn., 113 Fed. 609. Even where the devisee is specifically directed by the will to pay the annuity as a condition of the devise the courts hold that the effect is merely to create a charge upon the lands. Springers Appeal, 111 Pa. 228; 2 Atl. 855; Parsons v. Millar, 189 Ill. 107; 59 N. E. 606; Patrick v. Patrick, 135 Ky. 307; 122 S. W. 159; Smith v. Jackman, 115 Mich. 192; 73 N. W. 228; Woods v. Gilson, 178 Mass. 511; 61 N. E. 58; Hutchins v. Hutchins, 42 N. Y. Supp. 601; Jacobs v. Ditz, 260 Ill. 98; 102 N. E. 1077; Allen v. Allen, 121 N. C. 328; 28 S. E. 513; Prince v. Barrow, 120 Ga. 810; 48 S. E. 412.

In McNally v. McNally, supra, where the testatrix left certain real estate to a son and daughter “ conditioned upon ” their paying to other of her children specified sums and providing support for another son during his life, the court said:

The first question raised is whether the payment of the sums stated is a condition precedent or condition subsequent, or a charge upon the real estate devised. It is plain that the will does not create a condition precedent, because the devises are to take effect upon the death of the testatrix, while the payment is postponed for three years; nor a condition subsequent, because there is nothing in the will to show an intention of the testatrix to subject the estate to forfeiture. The payments were not for the benefit of her estate or of her heirs, generally, to whom a forfeiture would inure, but a mode of equalizing her gifts by requiring children to whom real estate was devised to make payments of money to other children who received no other gift from her, * * *. The use of the word “ conditioned ” does not necessarily imply a strict condition, either precedent or subsequent. The intention must control. 2 Washb. Real Property (5th Ed.) 446, par. 3, and cases cited in Note 5. We think that the intent in this ease was to make the payments a charge upon the estate devised.

The rule discussed above is accepted and applied by the courts of Wisconsin, in which State decedent resided, and the will was probated, and under whose laws the rights and obligations of these parties with respect to the property in question must be determined. In Korn’s Will, 128 Wis. 438; 107 N. W. 659, in which a bequest similar to the one here in question was involved, the court said:

The will does not, in terms, provide that the same should be a charge, but uses the expression that the devise to William is upon the condition that he shall, within one year after the widow’s death, pay this amount to Phillipina. The expression “upon condition,” if not otherwise qualified, might be construed as a condition precedent so that William could not take the land at all without making such payment, but since he was to take in possession immediately upon his mother’s death, and was not required to make the payment until afterwards, namely, within a year, of course no condition precedent was intended. If, then, it is a condition at all, it is a condition subsequent; but there is no suggestion that his title is to be divested upon breach of that condition, and no provision is made for any one else to take the land upon such breach. Hence, it seems necessary to deduce some other practical meaning and purpose from this language. We are persuaded that the trial court reached substantially the right conclusion on this subject. We think it plain that this $5,000 provision for the daughter — all that she receives under the will — was a very dominant purpose in the mind of the testator, and that his wishes, as evidenced by the will, would not be satisfied unless she receives it; hence that he intended to declare his will that out of this farm, constituting nearly half of his estate, should be paid, in any event, $5,000 to the daughter Phillipina; that this purpose should not be defeated either through William’s inability to raise that amount of money upon his limited estate therein, or otherwise. To reach this result he must have intended to confer upon her the right to a lien or charge for this amount upon the whole title in these premises, and we agree with the trial court in holding that the will does so.

In the case before us the devise to these petitioners is to take effect upon the death of the testator, the payments of the annuity being for succeeding years. There is no indication of an intent that the passing of title should await the expiration of the term of the annuity and that the payment of same is to be a condition precedent; nor is there an indication of an intent that the failure to make such payments shall work a forfeiture, and no such intention can be presumed in view of the fact that the forfeiture would not effect a change in petitioners’ interest in the property, for any interest which they might forfeit under this specific devise they would thereupon take, in identically the same proportion, as residuary legatees.

An annuity which is a charge against property is from its nature payable first out of income and any deficiency charged against corpus. Cummings v. Cummings, 146 Mass. 501; 16 N. E. 401; Richardson v. Hall, 124 Mass. 228; Rowe v. Lansing, 53 Hun. 210; 6 N. Y. S. 777; Matter of Haviland, 49 Hun. 301; 1 N. Y. S. 904 (aff'd. 27 N. E. 412); Pierrpont v. Edwards, 25 N. Y. 128; Comstock v. Herron, 55 Fed. 803; Cooper’s Estate, 147 Pa. 322; 23 Atl. 456; Gee v. Gee, 204 Ill. 588; 68 N. E. 515. See also J. W. Auld, 13 B. T. A. 1213.

In Hammond v. Hammond, 169 Mass. 82; 47 N. E. 535, the court said:

Even if there were no express provision in regard to payment, the division of the legacies to each of his children into five equal parts, one to be paid in each year, would be an indication that they were to be paid from income, rather than from the principal of his estate. In Oummings v. Oummings, 146 Mass. 501, 16 N. E. 401, it was said that “ the very nature of an annuity suggests, when those charged with the payment of it have in their hands a fund producing income sufficient to pay it, that the payment should be made from the income, and not from the principal.”

In the light of the decisions above cited we conclude that these petitioners eacs,.\ took, under the will of their father, an undivided one-third intere» in this real property over and above a charge against such interests in the sum of $6,000 a year in favor of their mother, payable first out of the yearly income and as to any deficiency out of corpus.

The record shows that in none of the years here involved were the rents from this property sufficient to pay the full amount of the annuity. We hold that none of this represented income taxable to petitioners. The amount necessary in each year to make up the sum of $6,000 was paid by these two petitioners, in equal proportions, from personal funds. These payments are claimed by them to represent losses but it can be readily seen that they are merely payments which would otherwise be satisfied out of the corpus of the property and are no more than the payment of petitioners of any other incumbrance representing a lien upon property to which they hold title. These payments, although made from personal funds, are in fact payments out of the corpus of the property and can not represent losses to these petitioners, for what they took under the will was merely the residuum of the property over and above the extent to which it might be exhausted in meeting annuity payments. Such payments are capital transactions and represent items of the cost to them of the property in satisfying the lien of the annuity.

We accordingly sustain the determination of deficiencies as made by respondent in respect to these two petitioners for the years in question.

Judgment will he entered accordingly.  