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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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