TRAYNOR, J. On August 19, 1935, the decedent created three trusts, one each for his two daughters and one for his son. The corpus of each trust consisted of stocks and bonds valued at approximately $100,000. The provisions of the trusts material to this case were identical.
Each trust was to continue for the life of the trustor, during which time the income from the son’s trust was to be accumulated, while the income from the daughters’ trusts was to be paid to them. Each trustee was authorized, if he deemed it in the best interest of the beneficiary, to deliver to him upon request portions of the corpus not to exceed an aggregate of $50,000 plus 50 per cent of any property that the trustor might add to the trust. Under this provision, one daughter received 20 per cent and the other 30 per cent of the corpus of her trust before their father’s death.
Upon the termination of each trust upon the trustor’s death, the corpus (together with the accumulated income in the case of the son’s trust) was then “to go to and vest in’’ the respective beneficiaries. If a beneficiary did not survive the trustor, the property, both income and principal, was to go as the beneficiary might appoint by will; in default of such appointment it was to go to his or her children and their heirs.
Each trustee was given complete authority to manage and control the respective trust estates. None of the trusts could be revoked or amended, and the trustor made no reservations in his favor, although he expressed the wish that his consent be obtained before the trustee sold or otherwise disposed of the trust property. The interests of all beneficiaries were protected by spendthrift provisions and thus could not be assigned or subjected to the claims of creditors. The decedent’s son was named trustee of his sisters’ trusts. The decedent himself became trustee of his son’s trust. In 1938, however, a law partner of both the decedent and his son was appointed trustee of the latter trust.
At the time of the execution of the trusts, decedent wrote a letter to his son, stating that the transfers were made, not in contemplation of death, but to avoid high income taxes, to make his daughters independent of the monthly allowances that he [456]had previously been giving them, and to place his son in a position substantially equal to theirs. The trustor was then 68 years old, healthy, active and vigorous. He died six years later from causes unforeseen at the time the trusts were executed.
The controller seeks to collect an inheritance tax upon the transfers on the grounds that they were intended to take effect in possession or enjoyment at the donor’s death and that they were made in contemplation of the donor’s death. (Inheritance Tax Act of 1935, Deering’s Gen. Laws, 1935 Supp., Act 8495, §2 (3) (b) and § 2 (3) (a); Stats. 1935, ch. 358, § 2(3) (b) and § 2 (3) (a).) There was no conflict in the evidence on either issue. The trial court entered judgment in favor of respondents and the controller appeals.
Section 2 (3) (b) of the Inheritance Tax Act of 1935 imposes a tax upon the “transfer of any property ... in trust or otherwise ... (3) When the transfer is of property made by a resident or by a nonresident ... (b) Intended to take effect in possession or enjoyment at or after such death, or in which a life income or interest is reserved by the grantor, either expressly or impliedly, or by the grantee promising to make payments to or care for the grantor.” Respondents contend that whether a given transfer was intended to take effect in possession or enjoyment at or after death is a question of fact, on which a decision of the trial court supported by substantial evidence is conclusive. This contention may be valid when the transferor’s intention is not set forth in a written instrument but must be determined from the surrounding circumstances, or when there is an attempt to tax an otherwise nontaxable transfer by proof of a parol agreement inconsistent with the terms of the instrument of transfer. (Kelly v. Woolsey, 177 Cal. 325 [170 P. 837]; Spreckels v. State, 30 Cal.App. 363 [158 P. 549]; McDougald v. Wulsen, 34 Cal.App. 21 [166 P. 1033]; Estate of Schmidt, 49 Cal.App.2d 86 [121 P.2d 104].) In this case, however, decedent’s intention was clearly set forth in the trust instruments. No attempt was made to show that he had any other intention. No question as to the construction of the trust instrument is presented. The issue is simply whether the transfer intended and made is a transfer covered by the statute. The construction of a statute and its applicability to a given situation are matters of law to be determined by the court. (County of Sierra v. County of Nevada, 155 Cal. 1,14 [99 P. 371]; Signal [457]Hill v. County of Los Angeles, 196 Cal. 161, 168 [236 P. 304] ; Bodinson Mfg. Co. v. California Employment Com., 17 Cal.2d 321, 326 [109 P.2d 935]; Estate of Platt, 21 Cal.2d 343, 352 [131 P.2d 825] ; Mitchel v. Brown, 43 Cal.App.2d 217, 222 [110 P.2d 456]; see 23 Cal.Jur. 719; 10 Cal.Jur. 882.)
Respondents contend that regardless of the provisions in the gift instrument, an inter vivos gift is never taxable under section 2 (3) (b) unless title, possession, or enjoyment are retained by the donor until his death. The precise question has never been passed upon in this state. Respondents call to our attention the case of Estate of Schmidt, supra, which they deem conclusive. In that case a gift of shares from a husband to his wife was held not taxable on the ground that it had been made “without any reservation and without any intention that it should take effect in possession or enjoyment at or after the death of the deceased.” (49 Cal.App.2d 86, 89.) The ground upon which the controller relies here was not available to him in Estate of Schmidt, for there were no trust or other restrictions on the possession and enjoyment of the property in that ease.
The transfer that the controller seeks to tax is that which occurred in 1935 when the trusts were created. (Hunt v. Wicht, 174 Cal. 205 [162 P. 639, L.R.A. 1917 C 961]; Estate of Potter, 188 Cal. 55 [204 P. 826].) The issue is not whether the donor retained some power or interest until his death, but rather whether he tied up the property with so many strings, which could not be loosened until his death, that the transfer may be regarded as having been intended to take effect in possession or enjoyment at his death within the meaning of the statute. It should be noted at the outset that the statute speaks, not of title, but of possession and enjoyment. Were it not for worthy authority to the contrary, a gift of income for the trustor’s life with remainder at the trustor’s death would appear from the plain wording of the statute tq, be a transfer intended to take effect in possession or enjoyment at or after death. In the early case of In re Cruger (54 App.Div. 405 [66 N.Y.S. 636], aff’d 166 N.Y. 602 [59 N.E. 1121]), in which the facts as to part of the property transferred were similar to those of the present case, the court said: “If there were no authority, we should think that the plain reading of the statute brought this ease within its terms.” (54 App.Div. 405 [66 N.Y.S. 636, 638].) More recently, in Hartford v. [458]Martin, 122 N.J.L. 283 [4 A.2d 31, 121 A.L.R. 354], the court said: ‘ ‘ There would seem to be no reason in principle why the settlor’s reservation of an interest in the trust res should be the test of taxability. The question is, after all, one of statutory construction, and the statute, in language that does not reasonably admit of doubt as to the legislative intention, renders taxable all transfers ‘. . . intended to take effect in possession or enjoyment at or after . . . death. ’ ” (122 N.J.L. 283, 286 [4 A.2d 31, 121 A.L.R. 354].)
Yet the courts are sharply divided on the question of the taxability of trusts such as these under statutes similar to ours. The leading case against taxability is Reinecke v. Northern Trust Co. (278 U.S. 339 [49 S.Ct. 123, 73 L.Ed. 410]), construing section 402(c) of the Revenue Act of 1921, (42 Stat. 278, now § 811(c) of the Internal Revenue Code, 26 U.S.C.A. § 811(c)), in which the United States Supreme Court held that trusts like those here involved were not intended to take effect in possession or enjoyment at or after death. The court pointed out that in its plan and scope the tax was one imposed on transfers made at death or in contemplation of death and that the only section imposing the tax, section 401 (42 Stat. 277), did so on the net estate of a decedent. The court then continued: “In the light of the general purpose of the statute and the language of section 401 explicitly imposing the tax on net estates of decedents, we think it at least doubtful whether the trusts or interests in a trust intended to be reached by the phrase in section 402(c) ‘to take effect in possession or enjoyment at or after his death, ’ include any others than those passing from the possession, enjoyment or control of the donor at his death and so taxable as transfers at death under section 401.” (278 U.S. 339, 348 [49 S.Ct. 123, 73 L.Ed. 410].) That doubt the court resolved in favor of the taxpayer.
The Reineeke case arose under an estate tax statute, whereas our statute imposes an inheritance tax. There are distinctions between the federal estate tax system and the inheritaij.ee tax system prevailing in most states—distinctions to which this court had occasion to refer in Estate of Miller (184 Cal. 674 [195 P. 413, 16 A.L.R. 694]) as follows: “The California tax is a succession tax, a tax on the beneficial interest of each beneficiary or heir. . .' . The federal tax ... on the other hand, is not a succession tax, but an estate tax, not a tax on what comes to the beneficiaries or heirs, but upon what is left by the decedent.” (184 Cal. 674, 678.)
[459]Section 401 of the federal act imposes the tax upon the decedent’s net estate “to the extent of the interest therein of the decedent at the time of his death.” (§ 402(a), 42 Stat. 278.) In the California act there is no provision making the reservation of an interest hy the donor the test of taxability. Moreover, while Reinecke v. Northern Trust Co., supra, has not been overruled, the authority of that case has been considerably diminished by subsequent decisions of the United States Supreme Court.
Reinecke v. Northern Trust Co., supra, was decided in 1929. Less than two years later the United States Supreme Court held in May v. Heiner (281 U.S. 238 [50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244]), that a gift with a reservation of a life estate to the donor was not a transfer intended to take effect in possession or enjoyment at or after death. In retrospect, it does not seem surprising that a court that was about to interpret section 402(c), supra, so strikingly in terms of a shift in title rather than a shift in possession or enjoyment should have decided the Reinecke case as it did. To a state court, however, that long before the decision in May v. Heiner, supra, had upheld the taxability of gifts reserving a life estate to the donor (see Estate of Felton, 176 Cal. 663 [169 P. 392]; Estate of Murphy, 182 Cal. 740 [190 P. 46]; Estate of Potter, supra, the Reinecke case might not appear authoritative. In Helvering v. Hallock, 309 U.S. 106 [60 S.Ct. 444, 84 L.Ed. 604,125 A.L.R. 1368]) the United States Supreme Court itself made a significant change in its approach to problems involving transfers intended to take effect at or after death. In that case the donor retained no life estate, but the property was to revert to him if he survived the life tenant. If he did not, the remainder went to his children. The donor died first and the court sustained the inclusion of the corpus in his gross estate for estate tax purposes. In May v. Heiner, supra, the lapse at the donor’s death of his interest in the property, a life estate, was not enough to support the tax, for according to the court, no interest then passed from the dead to the living. It is difficult to believe that the court found in the lapse of the donor’s possibility of reverter in Helvering v. Hallock, supra, an interest passing from the dead to the living sufficient to satisfy the requirements of May v. Heiner, supra. It is more likely that the court had ceased to “subordinate the plain purposes of a mod[460]ern fiscal measure” (Helvering v. Hallock supra at p. 112) to technical considerations of property law. In fact the court said as much in Helvering v. Hallock in refusing to distinguish, for estate tax purposes, the various casuistries of the law of remainders.
The extent to which the Supreme Court has departed from its early interpretation of the federal act is shown even more clearly in Fidelity-Philadelphia Trust Co. v. Rothensies (-U.S.-[65 S.Ct. 508, 89 L.Ed.-]) construing the corresponding sections of the Revenue Act of 1926 (44 Stat. 70). There the trustor retained a life estate, after which the property was to go to her two daughters for life with a remainder to their surviving issue. If no issue survived the daughters, the corpus was to go as the trustor might appoint by will; in default of such appointment named charities were the ultimate beneficiaries. Taxability was conceded, but the estate sought to avoid paying a tax on the entire value of the property at the time of the trustor’s death. Since the trustor had retained a life estate, all that was needed to sustain a tax on the entire value was to overrule May v. Heiner, supra. The court, however, rested its decision on the ground that the trustor retained a string, which, upon certain contingencies, would have permitted her to direct by will the further disposition of the corpus. The retention of such a string, the court said, “might have resulted in altering completely the plan contemplated by the trust instrument for the transmission of decedent’s property. . . .” (65 S.Ct. 508, 510.) Consequently the value of the entire corpus was subject to the tax. The retention of that string, however, could have no effect on the daughters’ life estates. It gave the trustor control over the disposition of the property only after the daughters’ interests had terminated, or after the death of both daughters in the trustor’s lifetime precluded their life estates from coming into existence. The daughters’ interests were contingent upon their surviving their mother; but that contingency was created by the mother’s retaining a life estate, not by her retaining a reversionary interest. (See Nelson, The Stinson Case, 23 Tax Magazine 245.) A quotation from Commissioner v. Estate of Field,-U.S. - [65 S.Ct. 511, 89 L.Ed.-], a companion ease, shows even more clearly the court’s present approach: “The estate tax is not based on the value of the reversionary interest of the decedent at the time of his death but on the value ... of the property to which that . . . [461]interest relates. It makes no difference . . . how remote or uncertain may be the decedent’s reversionary interest. If the corpus does not shed the possibility of reversion until at or after the decedent’s death, the value of the entire corpus on the date of death is taxable.” (65 S.Ct. 511, 512.) Although the decedent in Fidelity-Philadelphia Trust Co. v. Rothensies, supra, retained a reversionary interest until his death, the tax was not measured by the extent of his interest at the time of his death. The value of the entire corpus was taxed, not merely the value of the reversionary interest. If a reversionary interest has no more than a nominal value, a tax measured by the entire corpus is necessarily imposed on the transfer of an interest that the decedent had not retained but had allowed to pass to the living before his death. The fact that the value of the entire corpus of a trust is now subject to the federal tax, even though the interest retained by the trustor is unsubstantial, suggests that the retention of an interest by the donor has become less significant as a test of taxability than the restrictions imposed by him on the possession or enjoyment of the property until his death. (See 1 Paul, Federal Estate and Gift Taxation, 297; Inter Vivos Transfers and The Federal Estate Tax, 49 Yale L.J. 1118, 1123.)
Respondents rely on cases from several states in addition to Reinecke v. Northern Trust Co., supra. In re Prange’s Will, 201 Wis. 636 [231 N.W. 271], was decided exclusively on the authority of the Reinecke case. Nor is there any compelling argument in favor of plaintiffs’ position in People v. Welch’s Estate, 235 Mich. 555 [209 N.W. 930].) Safe Deposit Etc. Co. v. Bouse, 181 Md. 351 [29 A.2d 906], is not in point, for the transfer there in question took place before the enactment of the statute. Gases from New York are cited by the controller as well as by respondents. The law in that state appears unsettled. (Compare In re Cruger, supra; In re Patterson’s Estate, 127 N.Y.S. 284, aff’d 204 N.Y. 677 [98 N.E. 1109] ; In re Dunlap’s Estate, 205 App.Div. 128 [199 N.Y.S. 147] ; with In re Schweinert’s Estate, 133 Misc. 762 [234 N.Y.S. 307]; In re Kirby’s Estate, 228 App.Div. 171 [239 N.Y.S. 390], aff’d 254 N.Y. 624 [173 N.E. 894].) In In re Dolan’s Estate, 279 Pa. 582 [124 A. 176, 49 A.L.R. 858], the court refused to sustain the tax even though the donor reserved a power of revocation. That case is therefore not pertinent here, although it no doubt indicates that a jurisdiction that does not allow [462]taxation when a power of revocation is reserved would a fortiori reject it when no reservation whatever is made by the grantor. In Illinois, the rule against taxability seems to have originated in an unsupported dictum in People v. McCormick, 327 Ill. 547 [158 N.E. 861], a case in which the transfer was held taxable. Moreover, it should be noted that Illinois is another minority jurisdiction in which gifts with the reservation of a power of revocation are held not taxable (People v. Northern Trust Co., 289 111. 475 [124 N.E. 662, 7 A.L.R. , 709]; see Rottschaefer, Taxation of Transfers Taking Effect in Possession at Grantor’s Death, 26 Iowa L.Rev. 514, 529).
Respondents contend that the cases upon which the controller relies all come from jurisdictions with rules of property law opposed to the rules adopted in California. Whether that be true or not is immaterial, for the reasoning in these cases is based on realistic considerations regarding the possession and enjoyment of the property that are as relevant here as in those jurisdictions. Moreover, the case upon which respondents rely as establishing the California rule of property law does not preclude taxation in the present case. Hunt v. Wicht, supra, holds merely that the statute does not apply retroactively. Nor is respondents’ position improved by considering the trustee an agent of the beneficiary. The trustee no doubt acquired possession before the trustor’s death, but his enjoyment was as limited as that of the beneficiary.
With the trustee’s consent, each beneficiary could have obtained, and decedent’s daughters did obtain, portions of the trust property. The controller does not seek to tax the portions thus advanced, but only the balance remaining in the trusts at the time of the father’s death. It is true that, since the value of each trust might have fallen in the trustor’s lifetime below the limit of $50,000 set upon withdrawals, the trusts might conceivably have terminated before his death. This provision shows no more than that the trustor had alternative intentions. He made dispositions intended to take effect at his death, yet indicated his willingness that they be defeated under certain contingencies. It is irrelevant that his dispositions were subject to certain contingencies now that those contingencies can no longer occur. In fact, the trusts lasted until the trustor’s death, and the trustor certainly intended that the transfer of what remained of the corpus should take effect in possession or enjoyment at his death. No tax is imposed upon the transfer of the portions released in [463]his lifetime. But to the extent that the transfers took effect at death, as he intended, the tax should be upheld. “In a possible contingency . . . enjoyment . . . might have begun while the grantor was yet in being. We think this feature is insufficient to take the case out of the rule. ... We are to view the sequence of events in the order of the actual rather than the possible.” (Matter of Schmidlapp, 236 N.Y. 278, 285-286 [140 N.E. 697].)
Respondents finally contend that the controller’s admitted failure in 1923 to tax similar trusts, the trusts involved in Wheeler v. Commissioner, 20 B.T.A. 695, amounted to an administrative construction of the statute, and that this construction was adopted by the Legislature in 1935 when it reenacted the statute, and now precludes taxation in this case. Mere failure to act, however, does not constitute an administrative construction. (Louisville v. Board of Education, 154 Ky. 316 [157 S.W. 379], and eases cited in 2 Sutherland, Statutory Construction (3d ed.), p. 520, n. 9.) Moreover, an erroneous administrative construction does not govern the interpretation of a statute, even though the statute is subsequently reenacted without change. (Whitcomb Hotel, Inc. v. California Emp. Com., 24 Cal.2d 753, 757-758 [151 P.2d 233], and cases therein cited.)
The purpose of the Legislature in imposing a tax on transfers intended to take effect at or after death is to prevent avoidance of the inheritance tax. “The sole reason for mentioning dispositions inter vivos ... is to prevent the evasion of the tax ... by such dispositions. In contemplation of that law [the inheritance tax law], the gifts inter vivos therein mentioned are all presumed to have been made with the intent to evade the tax imposed on transfers taking effect by succession at death.” (Estate of Potter, supra, 63.) Section 2(3) (b) does not impose a tax upon certain precisely defined transfers; it is rather an attempt to impose a tax in all eases, regardless of the form of transfer adopted, in which possession or enjoyment does not take effect until the donor’s death.
Even though a trustor may have parted with all interest in the property, limitations that he has imposed will last as long as the trust lasts. Decedent’s children were all over 21 years of age at the time the trusts were created. The daughters were married. It is unlikely, therefore, that decedent [464]entertained any doubts as to the ability of the beneficiaries to manage the property. If it had been because of such doubts that he chose to make the gifts in trust rather than outright, he hardly would have provided that the trusts should terminate upon his death. Moreover, since the trusts are not in the nature of a family settlement, with the usual provisions for life estates to children and remainders to grandchildren, the conclusion is inescapable that decedent advisedly chose to make gifts in trust so that, for the rest of his lifetime, the principal would be kept intact and the income would be paid to the family of which he was the head. “The case presents a typical one of a donor possessed of large property interests denuding himself of his possessions and placing them in the friendly hands of his immediate family, taking care to see that they do not get away from his own superior control as head of the family during his lifetime. ... It is said that no income was reserved to the grantor. In literal terms this is true . . . but in substance it was otherwise. The highest instincts of the family are to guard and protect, and, if necessary, provide for its members. The close relation of its members could leave no doubt that the donor was placing the property in the hands of those to whom he could look with every assurance that any or all of the income would be his for the asking. It was as to the income potentially within the donor’s reach and as to the entire principal a transfer intended to take effect at his death.” (Koch v. McCutcheon, 111 N.J.L. 154, 156-157 [167 A. 752].) To the same effect are In re Hollander’s Estate, 123 N.J.Eq. 52 [195 A. 805]; Hartford v. Martin, supra; State Street Trust Co. v. Treasurer, 209 Mass. 373. [95 N.E. 851], and Coolidge v. Commissioner, 268 Mass. 443 [167 N.E. 757]. The United States Supreme Court, reversed the latter case, but on grounds that had nothing to do with the construction of the statute. (Coolidge v. Long, 282 U.S. 582 [51 S.Ct. 306, 75 L.Ed. 562].) Of all the eases that support the controller’s position, perhaps none contains so clear an analysis of the problem involved as a recent Connecticut ease, Bridgeport City Trust Co. v. McLaughlin: “. . . The necessary intent existed that some change in the son’s rights in the trust property should take effect on his (the trustor’s) death. . . . The next question is, was this change a transfer of possession or enjoyment . . . taxable under the statute ? . . . The death of the settlor broke the shackles of the trustee’s management of the trust and gave the son the right to use the principal as his own property. ... To most persons the transfer of the un
It should be noted that the “shackles” of the trusts were stronger in the present case than in some of the cases just cited. The respondents’ interests were contingent upon their surviving the trustor. Each trust contained spendthrift provisions so that the beneficiaries could neither dispose of their interest in the corpus (Seymour v. McAvoy, 121 Cal. 438, 442 [53 P. 946, 41 L.R.A. 544] ; McColgan v. Magee, Inc., 172 Cal. 182, 186 [155 P. 995, Ann.Cas. 1917 D 1050] ; Estate of Edwards, 217 Cal. 25, 27 [17 P.2d 116]; Kelly v. Kelly, 11 Cal.2d 356, 362 [79 P.2d 1059, 11 A.L.R. 71], see 23 Cal.Jur. 519) nor request that the trusts be terminated before the trustor’s death. (Fletcher v. Los Angeles Tr. & Sav. Bank, 182 Cal. 177, 179 [187 P. 425].) Moreover, irrespective of spendthrift provisions, the trusts could not be so terminated, since other persons, some perhaps not yet born, had possible interests in the trust property. (Gray v. Union Trust Co., 171 Cal. 637 [154 P. 306]; Estate of Washburn, 11 Cal.App. 735 [106 P. 415]; Woestman v. Union Trust etc. Bank, 50 Cal.App. 604 [195 P. 944]; Hunt v. Lawton, 76 Cal.App. 655 [245 P. 803]; Estate of Easterday, 45 Cal.App.2d 598 [114 P.2d 669].)
In view of our decision that the gifts here involved were intended to take effect in possession or enjoyment at death, there is no need to consider the contention that they were made in contemplation of the donor’s death.
The judgment is reversed.
Gibson, C. J., Carter, J., and Peters, J. pro tern., concurred.