The opinion
Withey, J., dissenting: In arriving at the conclusion reached here, the majority has first found the value of the trust estate and the value of the right to support which lone is said to have relinquished, has then compared the two, and arrived at the overage in value of the trust estate which is found to be includable in decedent’s estate. I have no quarrel with the method of arriving at the overage but do have difficulty in concluding that any consideration passed from the wife to the husband during his lifetime by virtue of either the trust instrument or the separation agreement which the majority has, rightly I think, found to be a single transaction. Even though the separation agreement expressly provides that “no provisions for alimony to the wife shall be made in the decree to be entered” in the event of a divorce between the parties, the substance of the transaction, as distinguished from its form, does not amount to the relinquishment even partially of the wife’s right to support. The provision that the decree shall not mention support money is not dispositive of the question. The very nature of the two agreements, taken together as they must be, not only recognizes the existence and continuance of her right to support, but assures the financing thereof. She has given up nothing which may be held to be consideration under section 2043(a) running to the husband. It follows that the entire trust estate should be included in decedent’s estate.