- 41 - to accumulate income of the marital trust during Laura's lifetime." Petitioner takes this position in the alternative to its position, discussed above, that the order of the probate court was "a decision of a local court upon the merits in an adversary proceeding". According to petitioner, "the effect of such a qualified disclaimer is that the income interest must be deemed to have passed from the Decedent to Laura [i.e., Mrs. Rapp]." Respondent argues that the Court should not consider this issue, viz, whether the probate court's order meets the requirements of a qualified disclaimer under State or Federal law, because it was raised for the first time in petitioner's post-trial brief. As a result, respondent complains, the Government was deprived of an opportunity to introduce evidence at trial that would have had a bearing on the issue. In this regard, respondent notes that one of the cotrustees, Mr. David Rapp, and the guardian ad litem, Mr. Rae, were not called to testify at trial, and respon- dent did not examine the other cotrustee, Mr. Richard Rapp, about this issue. Respondent also raises a number of substantive issues about whether the probate court's order constitutes a qualified disclaimer under either Federal or California State law. Finally, respondent argues in thePage: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
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