Estate of Betty Pace Miller, Deceased, Jerry D. Walker, Independent Executor - Page 12

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            discussed above.  Moreover, there is no provision in the will for                           
            imposition of estate tax on the trust portion of the residuary to                           
            the exclusion of the marital portion of the residuary.  Instead,                            
            decedent specifies that estate tax be paid generally out of the                             
            residuary "without apportionment".  Under petitioner's reasoning,                           
            decedent could have also intended that Mr. Miller's share of the                            
            residuary bear the entire estate tax burden.  In essence,                                   
            petitioner asks this Court either to eliminate article II (pay                              
            estate taxes out of residuary), to rewrite it to provide that                               
            "all estate tax shall be paid from the trust portion of the                                 
            residue of my estate", or to redefine the word "residuary".                                 
                  Petitioner disavows any intent to eliminate altogether the                            
            Federal estate tax on the estate.  Petitioner's position is:                                
                  It was not the Testatrix's intent to eliminate the                                    
                  estate taxes from her Estate through the use of the                                   
                  unlimited marital deduction.  Instead, her intent was                                 
                  to fully provide for her husband's needs by giving him                                
                  fifty percent (50%) of her gross estate.  * * *  Her                                  
                  goal was never to eliminate estate tax, instead it was                                
                  to maximize the benefits and the property passing to                                  
                  her surviving spouse.                                                                 
                                                                                                       
            Petitioner relies on the testimony of Smith, the draftsman of the                           
            will and trust, in this regard.  (Although respondent objected to                           
            Smith's testimony on the ground that extrinsic evidence of intent                           
            is inadmissible, respondent's brief proposed a finding and based                            
            an argument on Smith's testimony.  We hold that respondent's                                
            objection was thus waived.)                                                                 






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