Welch

(concurring).

I concur in reversing the decision of the District Court but for reasons which are not in entire accord with what is said in the main opinion.

It is clear from the provisions of section 800 of the Revenue Act of 1926 that the transfer of the right to receive the stock, which accrues under the law of California at the-time of the death of the decedent, imposes a stamp tax upon such a transfer. Consequently, the appellee has no right to recover the money which was thus paid. The statute having provided for the tax the regulations of the Treasury Department could not relieve the transferee of the obligation imposed by the statute. These regulations did not purport to do so. The regulation, article 34, Treas. Regulations 71, subd. M, make the tax applicable upon the transfer in pursuance of a be quest which is in accord with the statutorj requirement that such a transfer be taxed. The other regulations are evidently adapted to the situation which occurred in those states where the personal property of tht decedent vests in the administrator or executor in the first instance and is transferred by him to the heir or legatee. Ii, such cases it is provided that the…

Appellee recovered judgment against appellant for the amount alleged to be illegally collected for documentary stamps which were affixed to certain stock certificates issued to appellee.

The facts were stipulated. Appellee’s husband died on February 23, 1929, leaving a will, by the terms of which appellee was named as residuary legatee. The stock certificates received by appellee may be segregated into three groups, all of which were in the possession of the executors of decedent’s will, immediately prior to the time of Jheir distribution to appellee, which took place about September 25, 1930.

The first group of certificates represented stock in Wm. G. Kerckhoff Company, hereinafter called the first corporation. Decedent was designated as the owner of such stock in the certificates at the time of his death. Some time prior to September 17, 1930, these certificates were surrendered to the corporation, canceled, and new certificates for the same total number of shares were issued, which certificates designated the executors as the owner of the stock represented by the certificates. On September 17, 1930, an order was made in the probate proceedings of decedent’s estate, ordering…