The opinion
OppeR, /., dissenting: This case seems to me not only difficult to reconcile with Estate of Edward F. Pipe, 23 T. C. 99 , but also inconsistent with Matteson v. United States, (N. D., N. Y.) 147 F. Supp. 535 , and Estate of Theodore Geddings Tarver, 26 T. C. 490 . In all three cases the widow was given not only income for life but some measure of the power of invasion. In the Pipe case, where there was no trust, this power was extremely broad. In the Matteson case authorization was given to consume if the wife “find that the income * * * is not sufficient,” a matter of which she was made the sole judge. The latter situation seems to me almost identical with that in the case before us. In the Matteson case Judge Foley says: “The limitation of good faith and honest judgment on the part of the surviving spouse is carefully preserved. Such limitation is incompatible with a power to dispose by appointment.” (Emphasis added.) And that a similar restriction would be placed upon a widow in Pennsylvania appears from the present opinion itself which describes the limitation as meaning “that the widow may not so deal with the property as to leave it unconsumed and yet prevent it from passing to those chosen by the testator to receive any such unconsumed remainder.” Yet in the same breath the conclusion is reached that the widow’s power is “unlimited.”
Any unconsumed property would pass under the original testator’s will, not by the exercise or failure to exercise any power of appointment by the widow. In re Tyson's Estate, 191 Pa. 218 , 43 Atl. 131 ; In re Brennan's Estate, 324 Pa. 410 , 188 Atl. 160 . Cf. Estate of Lama Brown Chisholm, 26 T. C. 253 . The present opinion makes this power to consume the equivalent of the statutory “power of appointment” as well as of the “unlimited power to invade” to which the regulation refers. The meaning so attributed to the latter term is inconsistent with such other language in the regulation as: “The power in the surviving spouse must be a power to appoint the corpus to herself as unqualified owner or to appoint the corpus as a part of her estate, that is, in effect, to dispose of it to whomsoever she pleases.” This the widow clearly could not do under this trust as it would be interpreted under the applicable local law. And in construing the statutory conditions including that the surviving spouse must have the power, exercisable in favor of herself or of her estate, “to appoint the entire corpus free of the trust,” the regulation requires that “regard is to be had to the applicable provisions of the law of the jurisdiction governing the administration of the trust.”
The present opinion takes the words out of section 812 (e) (1) (F)—
This subparagraph shall be applicable only if * * * such power * * * to appoint the corpus * * * is exercisable * * * in all events.
combines them with the Pennsylvania law, In re Tyson's Estate, supra, which makes it clear that it is not exercisable as a power of appointment at all, see Matteson, Executrix v. United States, supra, still less exercisable “in all events;” and concludes in effect that this property is qualified for the marital deduction because it will if not consumed by subject as the widow’s property to either the estate tax or the gift tax, when in fact this is highly improbable, Barritt v. Tomlinson, (S. D., Fla.) 129 F. Supp. 642 , and no cases are cited to sustain it.
HaeRon and Withey, JJ., agree with this dissent.