# Continental Illinois National Bank and Trust Company of Chicago v. The United States

> United States Court of Claims · November 15, 1968 · 403 F.2d 721

URL: https://www.frixlaw.com/law-library/cases/9454055

## Case

- **Full name:** CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** November 15, 1968
- **Citations:** 403 F.2d 721; 185 Ct. Cl. 642; 22 A.F.T.R.2d (RIA) 6116; 1968 U.S. Ct. Cl. LEXIS 6
- **Precedential status:** Published
- **Opinion:** Dissent by Nichols
- **Judges:** Cowen, Laramore, Durfee, Davis, Collins, Skelton, Nichols
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NICHOLS, Judge
(dissenting).
I dissent and join in Judge DAVIS’s dissenting opinion. I agree with the majority that the charitable deduction under sec. 2055(a) (3) is unavailable when a bequest can be lawfully diverted to a noncharitable use. However, as I read City of Aurora ex rel. Egan v. Y.M.C.A., 9 Ill.2d 286 , 137 N.E.2d 347 (1956), under the will and under Illinois law the Mayor and Magistratsraete of Fuerth, Bavaria, received the residue of the estate in trust for charitable purposes only. They were not free to divert it to any purpose, even if beneficial to the citizens of Fuerth, if not charitable. A bequest available to a municipality for all proper governmental purposes might be a case different from the case before us, and one as to which we should not, I think, express any opinion. I do not have any view about it, as of now. It does not render sec. 2055(a) (1) meaningless if one concludes that charitable bequests to municipalities are also exempt under 2055(a) (3). Congress knows about American municipalities and knows the constitutional limitations on their activities. It does not know about foreign municipalities, so at a minimum some proofs would be required, such as plaintiff furnished here, as to the status and function of the Mayor and Magistratsraete under German law. Thus sec. 2055(a) (1) permits distribution to American municipalities without red tape that must somewhat encumber the proceedings in case of foreign municipalities. The Mayor and Magistratsraete having devoted the legacy to that most classic of charitable uses, an old folk’s home, they have also mooted the question whether charitable uses in the case of a municipality must exactly parallel what would be charitable uses in the case of private trustees; i. e., if a private police force is not a charitable use, then a public force is not one either. This issue was not briefed or argued and I would prefer to withhold from the parties our conclusions about it. If the testator here limited his bequest to charitable uses, whatever they may be in the case of a municipality, the possibility of diversion by the Mayor and Magistratsraete to noncharitable uses, whatever they may be, is eliminated.
In Estate of Lamson v. United States, 338 F.2d 376 , 168 Ct.Cl. 33 (1964), the issue was whether that decedent estate could take a charitable deduction from estate tax for a legacy to a son, because the testator had known the son was a *740 priest, bound by the vows of his order to turn over any property he might receive to the order for its religious purposes. The opinion appears to assume that the son might lawfully have left the order after the will was made but before the father’s death, and if he had, his ownership of the legacy would have been absolute. If so, this was obviously a determinative factor lacking here. Under the City of Aurora case, Fuerth had no option, in my opinion, such as Lamson’s son did, to divert the legacy lawfully to non-charitable purposes.
I do not reach the treaty question and express no view about it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454055. Public record. Not legal advice.