Opinion of the Court tion of the contract. Even if the contract implied that plaintiff should ask authority from the Works Progress Administration to employ workmen outside of the provisions thereof, we still think plaintiff's failure so to do is no answer to the claim which it makes that the contract was breached, because the making of such a request would have availed nothing, and we conclude there was a breach of the contract on the part of the defendant. There is no dispute over the fact that the plaintiff was delayed 23 days by the failure to obtain the necessary workmen, nor is there any conflict as to the amount of its damages therefor which was practically agreed upon between plaintiff and the contracting officer. Plaintiff, however, asks damages for 5 days' additional delay caused by a truck drivers' strike and as a reason for this claim asserts that but for the delay caused by defendant failing to furnish the necessary workmen it would have finished the job before the strike took place. Conceding this to be the fact, we do not think it entitles the plaintiff to recover for this 5 days' delay. The defendant was not in any way responsible for the strike of the truck drivers. They were the direct cause of this 5 days' delay. This delay was not one which the defendant had any reason to anticipate and only indirectly was it connected therewith. We think that the plaintiff should be denied recovery on this item. As a further defense the defendant sets up that the plaintiff executed a voucher for the final payment in accordance with the terms of the contract and is thereby barred from making any further claims against defendant. Some early decisions of this court are cited in support of this contention. On the other hand, counsel for plaintiff say that the cited cases do not support such a rule except where a release is signed which states in substance that nothing further is owing to the contractor, and that in the case at bar the plaintiff executed merely a receipt for payment in accordance with the contract. Recent decisions of this court are also cited as being contrary to the rule which defendant seeks to have applied. The evidence shows that when the extension of time for completing the contract was granted Syllabus the plaintiff notified the contracting officer, through his assistant who was acting in the matter, that it would ask additional compensation on account of the delay. This notification was before the final voucher was signed and when the payment was made we think it was well understood between plaintiff and defendant that plaintiff would claim damages for the delay. We are clear that under the circumstances of the case plaintiff was not barred from recovering damages for the delay on account of the signing of the voucher. The evidence shows that the plaintiff was damaged by the delay to the extent of $4,918.69 which it is entitled to recover. Judgment is rendered accordingly. WILLIAMS, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. WHITAKER, Judge, took no part in the decision of this case. HARRIS TRUST AND SAVINGS BANK AND JENNIE L. FAY, EXECUTORS OF THE ESTATE OF ALBERT R. FAY, DECEASED, v. THE UNITED STATES [No. 43188. Decided November 6, 1939. Plaintiffs' motion for new trial overruled February 5, 1940]* On the Proofs Estate tax; trust executed in contemplation of death.-Where decedent in 1926 or 1927, when in good health, contemplated the creation of an irrevocable trust to manage his estate, but did not execute the trust deed until 1930, after he had developed a heart trouble, it is held that the trust was created in contemplation of death, although he did not die until 1933, and the heart trouble which caused his death was unconnected with the trouble from which he had previously suffered. Same. If illness was inducing motive for creation of trust, such trust was created "in contemplation of death," for estate tax purposes, notwithstanding that one of the motives for creation was consistent with thoughts of life. *Certiorari denied May 20, 1940. Reporter's Statement of the Case The Reporter's statement of the case: Mr. Albert H. Veeder for the plaintiffs. Messrs. Francis E. Baldwin and Henry Veeder were on the briefs. Mr. J. H. Sheppard, with whom was Mr. Assistant Attorney General Samuel O. Clark, for the defendant. Messrs. Robert N. Anderson and Fred K. Dyar were on the briefs. This is a suit to recover additional estate taxes assessed by the Commissioner against the estate of the plaintiffs' testator, resulting from the inclusion in his gross estate of the value of property included in a trust instrument executed by the decedent more than two years prior to his death, on the theory that the trust was executed in contemplation of death. The court, having made the foregoing introductory statement, entered special findings of fact as follows: 1. Plaintiff, Harris Trust & Savings Bank, is a corporation of the State of Illinois, engaged in business as a bank and trust company, with its principal place of business in the City of Chicago, State of Illinois, and plaintiff, Jennie L. Fay, is a citizen of the United States. Plaintiffs are the executors of the Estate of Albert R. Fay, deceased. 2. The decedent, Albert R. Fay, died at the age of 73 years on January 22, 1933, a resident of Chicago. His last will and testament was duly admitted to probate in the Probate Court of Cook County, Illinois, on February 14, 1933, and letters testamentary were thereupon issued to Harris Trust & Savings Bank and Jennie L. Fay. 3. The decedent, Albert R. Fay, and said plaintiffs have at all times borne true allegiance to the Government of the United States, and have not taken part in, aided, abetted, or given encouragement to rebellion or insurrection against the Government of the United States. 4. The plaintiffs are and always have been the sole and absolute owners of the claim presented in this litigation, and have made no transfer or assignment of said claim, or of any part thereof or interest therein, and no action upon Reporter's Statement of the Case said claim, other than this litigation, has been had before Congress or any of the Departments of the United States Government. 5. Decedent was employed by Swift & Company for about 45 years, and for many years prior to his retirement therefrom was its traffic manager. He retired from Swift & Company in 1926 or 1927. At the time of his retirement and for about one year thereafter he was vice president of South Side Trust & Savings Bank of Chicago. At the time of his death, decedent was a large stockholder and a director of City Ice & Fuel Company and a number of other corpo rations. 6. In 1926 or 1927 the decedent discussed with members of his family and with others, including his lawyers, the creation of a trust for the disposition of about one-half of his property. He declared his purpose in so doing to be, in part, to relieve himself of the burden of handling this portion of his estate, and to insure an income for himself and family during his life and, in part, to put the management of it after his death in hands he considered more capable than those of his wife and daughter, and thus insure to them an income after his death. However, he did not create a trust at this time, nor until June 12, 1930. During this period he was spending about one-half of his time away from his headquarters, principally in California in the winter and in Michigan in the summer. 7. Upon decedent's retirement in 1926 or 1927 he continued his private business activities, devoting the mornings to his work, and about three afternoons in the week to golf. Except for occasional minor ailments he enjoyed good health until about the year 1930. He spent the winter of 1929-1930 in California. While there he consulted physicians, who advised him that he had arteriosclerosis and myocardial degeneration. Upon his return to Chicago in March 1930 he consulted his family physician, who confirmed this diagnosis. This physician found that decedent had a much enlarged heart, with two murmurs, a marked weakness of heart action, and marked lowering of blood pressure. He prescribed Reporter's Statement of the Case that the decedent entirely forego any athletic activities, and that he remain absolutely in bed for six weeks. He was even prohibited from going to the bathroom. After the expiration of this six weeks, sometime in May 1930, he was allowed to be up with gradually increasing activities. After another period of from four to six weeks these restrictions were largely removed, and in June 1930 decedent was permitted to go to his summer home in Michigan, where he resumed the playing of golf, almost daily. Before going to Michigan, however, he secured from his physician in Chicago the name of a physician in his summer home, Wequetonsing, Michigan, whom he might consult if necessary. He did consult this physician on July 6, 1930, and at subsequent times during the summer. He did not inform this physician of his heart trouble, nor was he examined therefor except superficially. No such trouble was found as a result of this examination. Decedent did not follow strictly the instructions of his family physician in Chicago, and did not seem concerned about his physical condition; but, on the contrary, he appeared to believe that there was nothing seriously wrong with him. Myocardial degeneration is a curable disease, and the fact that he was suffering therefrom and from arteriosclerosis was not sufficient to cause decedent reasonably to believe that death would probably ensue therefrom. Later in the year 1930 the decedent developed angina pectoris, but there was no indication of this disease or that it might develop when decedent was put to bed in March 1930, or at the time he executed the trust instrument in question. The decedent died of angina pectoris on January 22, 1933. 8. Shortly after he was permitted to get up from bed and while still under the care of his physician, decedent resumed his consultations with his lawyers relative to the creation of the trust, later executed on June 12, 1930. To his attorney he represented that he had a variety of bonds and municipal securities that he desired placed in a trust; that he did not have the time to devote to their administra |