The opinion
Murdock, J., dissenting: I think that the Commissioner correctly determined the amounts of the gifts and those gifts should not be further reduced by the value of Marie’s life estate in that property which was contributed to-the trusts by her deceased husband.
The theory of the majority opinion is that the husband in paragraph fifth of his will intended to put into his residuary testamentary trust not only his own share of the property of the community which was dissolved by his death but also Marie’s share ; Marie would lose her life estate in the property contributed to that trust by her husband unless she permitted her share of the community property to be included in that trust; and since she allowed her property to go into the trust she received as consideration for that transfer her life estate in the property contributed to the trust by her husband.
Her husband had no. legal right to dispose of her property by his will, and it seems wrong to conclude as a matter of law that he did so under the terms of paragraph fifth of his will. I do not understand how he could impose binding conditions in his will dependent solely upon what Marie would do with her own property. Paragraph seventeenth of the will imposed no real penalty upon Marie had she chosen to consider that her share of the community property following the death of her husband was not included in his testamentary trust. It does not appear that under the laws of Texas she had any dower rights or other rights, as the widow of her deceased husband, of the kind mentioned in paragraph seventeenth. Certainly she did not acquire her right to one-half of the community property as widow of her deceased husband. She had that right during their marriage. Had she accepted the fifth paragraph of his will as applying to the property owned by her husband at the time of his death but not as applying to her property at that time, she could have received the life estate in the property which he properly and legally placed in his testamentary trust and her transfer to the same trust of property which belonged to her at the death of her husband was not consideration for the life estate which her husband gave her in his property.
The position of the majority in relation to the Inter Vivos Trust seems definitely weaker because as to that trust there was no condition whatsoever attached so far as the Findings of Fact show, and I see no reason why Marie, when she learned about the trust for the first time at the death of her husband, could not have withdrawn her property from that trust and at the same time enjoyed the life estate in the property of her deceased husband which would then remain in the trust.