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tax was to be paid out of the residue of the estate including the
marital trust property. Id. at 214.
Decedent's will expressly provided: "Such payment [of
estate tax] shall be made * * * without apportionment and without
contribution * * * from anyone". By including an express
provision regarding apportionment, decedent entirely negated
application of the general apportionment provisions of the Texas
statute with respect to the residuary. Tex. Prob. Code Ann.
sec. 322A(b)(2). By directing that there be no apportionment
within the residuary, decedent expressed an intention that there
be no discrimination between marital and nonmarital residual
beneficiaries. Thus, the estate tax liability reduces the amount
of the residuary available for distribution to Mr. Miller and to
the trust.
In Estate of Fine v. Commissioner, supra, the Court
interpreted a Virginia apportionment statute that is comparable
to the statute in Texas. In Estate of Fine, the decedent left
one-half of his residuary estate to his wife and the other half
to other beneficiaries. The will also directed that estate and
inheritance taxes be paid out of the residuary "without
apportionment". Notwithstanding the likelihood that the
"decedent hoped to leave his wife in the best possible position,
which would be achieved by maximizing the marital deduction, the
plain language of the will * * * [did] not permit that result."
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