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distinguished cases in which the trustee's discretion was
restricted by an objectively measurable standard. In such cases,
the charitable bequest may be currently ascertainable and the
possibility that the transfer will not become effective may be so
remote as to be negligible. See, e.g., Henslee v. Union Planters
Natl. Bank, 335 U.S. 595 (1949); Ithaca Trust Co. v. United
States, 279 U.S. 151 (1929).
Where a trustee or other fiduciary is given unrestricted
discretion to transfer property to noncharitable beneficiaries,
an eventual transfer of such property to charity does not meet
the requirements of the regulations and therefore is not entitled
to a charitable deduction. Where a trustee can divert funds or
property to a noncharitable beneficiary, it is generally
impossible to "presently ascertain" the value of the charitable
bequest at the date of decedent's death, because there might not
be a charitable bequest at all. Similarly, affording discretion
of that sort to a trustee renders more than remote the
possibility that decedent’s intention to make a charitable
transfer will not become effective.
In Estate of Taylor v. Commissioner, 40 B.T.A. 375 (1939),
the trustees were given discretion that enabled them to
decide between making a transfer to a charitable entity or a
noncharitable entity. In her will, the decedent bequeathed
$3,000 to her trustees in trust, for the purpose of establishing
a memorial to her parents, and an additional $3,000 for a similar
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