- 49 -
spouse during her lifetime. Otherwise, they would be
forced to sell the family farm in order to pay estate taxes
in excess of $8 million, and that would not be in the "best
interests" of the surviving spouse. Id. at 964. On the
other hand, if the trustees had chosen to decline to make
the QTIP election, then the "best interests" of the
surviving spouse would permit the accumulation of income.
Petitioner is asking this Court to do something that
the Court of Appeals in Ellingson did not do. Petitioner
asks us to find that the trustees are required to pay all
of the income from the trust to Mrs. Rapp on the ground
that it is in Mrs. Rapp's "best interests", for the trust
to qualify for the marital deduction. Unlike the Ellingson
case, however, there is no evidence in the trust instrument
that the decedent intended such result. Therefore, the
Ellingson case does not govern this one. In fact, the
Court of Appeals specifically distinguished its opinion
from Wisely v. United States, 893 F.2d 660 (4th Cir. 1990);
Estate of Doherty v. Commissioner, 95 T.C. 446 (1990); and
Estate of Nicholson v. Commissioner, 94 T.C. 666 (1990),
which it described as cases in which there was "no clearly
manifested intent" in the instrument that the trust
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