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that the surviving spouse could lose power over the corpus upon
the happening of a contingent event; namely, incompetency (in the
instant case) and incapacity or the appointment of a guardian (in
the case of Estate of Tingley). In Estate of Tingley, the
surviving spouse would lose any power over the corpus if the
contingent event occurred before the surviving spouse withdrew
the corpus. Although the surviving spouse in Estate of Tingley
did actually withdraw the corpus before the happening of this
contingent event, the Court held that, when viewed at the time of
the decedent's death, the surviving spouse's power was not
exercisable in all events. Estate of Tingley v. Commissioner,
22 T.C. at 404, 406.5 The same is true here. When viewed at the
time of the decedent's death, the surviving spouse would lose
4(...continued)
differences concerns the contingent events that would cause the
surviving spouse in each case to lose his or her power to appoint
the property. We read the definition of "incompetency" as set
forth in Article XXIII of the Agreement to be essentially similar
to the conditions in Estate of Tingley v. Commissioner, 22 T.C.
402 (1954), affd. sub nom. Starrett v. Commissioner, 223 F.2d 163
(1st Cir. 1955), that would have caused the surviving spouse
there to have lost the right to appoint the property.
5 In affirming our decision, the Court of Appeals for the
First Circuit stated:
We agree with the Tax Court that the marital
deduction was properly disallowed in this case, because
the power in the surviving spouse to invade the corpus
was not exercisable by her "in all events", in view of
the terminating condition, as specified in the will,
"in case of her legal incapacity from any cause or upon
the appointment of a guardian, conservator, or other
custodian of her person or estate". [Starrett v.
Commissioner, 223 F.2d at 166-167.]
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