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entitled to the advantages of the designation; while with the bond it was entitled to them. In this regard the bond was like that of a collector of customs, county treasurer, sheriff, clerk of court, administrator, guardian or cashier, as to which it is well settled that the selection of the officer or employe whose fidelity is assured constitutes a present consideration amply supporting the undertaking of the obligors—sureties as well as principals.

"It is a presumption of law that the parties to a contract bind not only themselves but their personal representatives. Executors, therefore, are held to be liable on all contracts of the testator which are broken in his lifetime, and, with the exception of contracts in which personal skill or taste is required, on all contracts broken after his death."

The bond in suit is a contract for the conditional payment of money, not the exercise of personal skill or taste, and therefore is one to which the presumption applies. No doubt it is admissible to restrict the presumption by a stipulation limiting a surety's obligation to defaults occurring within his lifetime, but the present bond does not contain such a stipulation, or anything indicating that such a limitation was intended. On the contrary, its terms are in full accord with the presumption, for in it the obligors expressly declare their purpose to bind not only themselves, but also their executors, administrators and successors, jointly and severally, for the performance of the obligation set forth.

In a long line of decisions relating to bonds not distinguishable from the one in suit it has been held that

• Estate of Rapp v. Phoenix Insurance Co., 113 Ill. 390, 395; Lloyd's v. Harper, L. R. 16 Ch. Div. 290, 314, 317, 319; In re Crace, L. R. 1902 (1) Ch. Div. 733, 738; Williston Contracts, Rev. Ed., § 1253

• 1 Chitty Contracts, 11th Am. Ed., 138; 2 Parsons Contracts, 6th ed., 530-531.

Opinion of the Court.

300 US

a surety's obligation does not terminate with his death but binds his personal representatives for past and subsequent defaults, as it would bind him if living.? The principle underlying these decisions is the same that prevails in respect of other related contracts, and we regard it as well sustained in reason and supported by the preponderant weight of authority.

Cases are brought to our attention in which it is held that a surety may terminate his obligation as respects future defaults by giving notice to that effect to the obligee. But these cases are not apposite. In some the instrument sued upon was held to be only a continuing offer without a supporting consideration and therefore revocable as to future transactions. Others rest upon a power so to terminate expressly reserved in the bond or in the applicable statute. Here the bond is a binding contract supported by an adequate consideration, and there is no reservation of a right to terminate in the bond or in the statute under which it was given. Nor has there been any effort to effect such a termination.

Whether the bankruptcy court may, upon appropriate application and showing, discharge a surety on an existing bond, as respects possible futụre defaults, and require the depository to give another and substituted bond, need not be considered, for no such application or showing appears to have been attempted.

'Broome v. United States, 15 How. 143; Hecht v. Weaver, 34 Fed. (111; United States v. Keiver, 56 Fed. 422, 423; Fewlass v. Keeshan, 88 Fed. 573, 574; Pond v. United States, 111 Fed. 989, 997; In re Crace, L. R. 1902 (1) Ch. Div. 733; Calvert v. Gordon, 3 Man. & Ry. 124; Green v. Young, 8 Greenl. 14; Royal Insurance Co. v. Davies, 40 Iowa 469; Moore v. Wallis, 18 Ala. 458; Knotts v. Butler,

v 10 Rich. Eq. 143; Hecht v. Skagg, 53 Ark. 291; 13 S. W. 930; Shackamaxon v. Yard, 150 Pa. 351, 358; 124 Atl. 635; Mundorff v. Wangler, 44 N. Y. Sup. Ct. 495, 506; Voris v. State, 47 Ind. 345; 349–350; - Exchange Bank v. Barnes, 7 Ontario 309, 320; Snyder v. State, 5 Wyo. 318, 323; 40 Pac. 441.

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While the bond was under seal we need not consider the effect to be given to this under the local law, for it affirmatively appears that the bond was given for a present and adequate consideration, which leads to the same result as if the seal were given the effect which would be accorded to it at common law.

It results that the judgment of the court of appeals must be reversed and that of the district court affirmed.

Reversed.

ELMHURST CEMETERY COMPANY OF JOLIET v.

COMMISSIONER OF INTERNAL REVENUE.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

No. 255. Argued January 5, 6, 1937.—Decided February 1, 1937.

1. Where there is substantial evidence to support a finding of the

Board of Tax Appeals upon a question of fact, its decision of such

question is conclusive upon review. P. 40. 2. Held, there was substantial evidence in this case to support the

finding of the Board in respect to the March 1, 1913 value of cemetery lots subsequently disposed of, and the reversal of its decision of that question by the Circuit Court of Appeals amounted to an unwarranted substitution of the court's judgment concerning facts for that of the Board. P. 40. 83 F. (2d) 4, reversed; B. T. A. affirmed.

CERTIORARI, 299 U. S. 527, to review a judgment reversing a decision of the Board of Tax Appeals (unreported) which set aside an order of the Commissioner determining a deficiency of income tax.

Mr. Elden McFarland, with whom Mr. Edward J. Quinn was on the brief, for petitioner.

Mr. Thurman Arnold, with whom Solicitor General Reed, Assistant Attorney General Jackson, and Messrs.

Opinion of the Court.

300 U.S.

Sewall Key and J. Louis Monarch were on the brief, for respondent.

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

Petitioner, in 1909, purchased one hundred and thirtyseven acres of land near Joliet, Illinois, for $60,000.00. Thirty-seven acres were divided into plots and developed for cemetery purposes by grading, constructing drives, planting shrubbery, etc., at a cost of $35,000.00. Grave plots, varying in area from 150 to 1,500 square feet, were sold from time to time under contracts for perpetual care.

Some 36,000 square feet were disposed of during the years 1909 to 1913 at prices ranging from 70.2 cents to 79.5 cents. The average between March 1, 1912, and March 1, 1913, was 76.6 cents. In the three years 1926, 1927, and 1928, 42,000 square feet were sold for $1.55 to $1.77. To determine the taxable gains realized from the latter sales it became necessary to ascertain the value of the lots as of March 1, 1913. The petitioner's return estimated this at 76.6 cents. The Commissioner adopted 23.96 cents and assessed deficiencies accordingly.

Upon petition for redetermination the Board of Tax Appeals, after considering the evidence, approved the 76.6 cent valuation and found no deficiencies. The evidence consisted of a stipulation by counsel concerning sales in 1909 to 1913 as detailed above, and the testimony of the Cemetery Superintendent.

He stated the original cost of the one hundred and thirty-seven acres, expense of development, area sold in 1926, 1927, 1928, and prices obtained. He affirmed familiarity with the property on March 1, 1913, prices then prevailing, and stated that the sales of 1912 and 1913 were in normal course without extra effort. Also that “the purchase price was established by my visiting

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a good many cemeteries that I figured were practically of the same class as that cemetery and situated near cities of about the same population, and I established a price from the price they were selling at.” Further that "every grave and lot in the cemetery sold since its organization is under perpetual care, and when perpetual care is provided, it means keeping the roads and drives in proper repair, keeping the drainage system in proper repair, keeping the fences in repair, cutting the grass, pruning the trees, shrubs, and keeping it in good condition." "We hope for a gradual increase in sales every year because, as a general rule, for every head of a family that is buried you secure four new families. That is the rule cemetery companies have adopted.” He thought it might take seventy-five years to dispose of all lots.

The Board declared "the parties are now concerned only with the value as of March 1, 1913, of that thirtyseven acres of petitioner's lands which have been improved and from which sales have been made." "Beyond statements of counsel to the effect that respondent (Commissioner] has attempted by formula to reduce the value of the improved land as of March 1, 1913, to present value, we are uninformed as to the method by which he chose the figures at which he fixes the basis for determining gain. Petitioner, however, has chosen as the footage valuation as of March 1, 1913, the selling price of its grave lots during the year just preceding that date76.6 cents—which is less than the average sales price during the month of March, 1913. We are of opinion that the valuation for which petitioner contends is reasonable and should be allowed. It is based upon actual sales, and consequently comes as closely as may be to that fair market value, so often judicially defined as the price which property will bring when offered by a willing seller to a willing buyer, neither being obligated to buy or sell.”