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Respondent's position is that the term "gross estate" was
meant in the technical sense used for Federal estate tax purposes
and that Mrs. Fagan intended for decedent to receive one-half of
all of the property in which she had an interest at the time of
her death. The only diminution was that resulting from the
instruction in Article I to pay her debts. Respondent points to
Article II as clearly stating Mrs. Fagan's intent that her son's
share not be decreased by either the Federal estate tax or the
administrative costs, in that she instructed that those items be
paid from the residuary estate, and his portion was a specific
bequest, not part of the residue.
Petitioner's interpretation of Mrs. Fagan's will would
render void her direction that "all costs of administration be
paid from the residuary portion of my estate". Paying the costs
out of the residue does not contradict or interfere with the
purpose of not diminishing decedent's share by Federal estate
taxes. Paying such costs out of the residue gives effect to the
first sentence of Article II and of Article III. Although, under
this construction, the term "gross estate" does not totally
coincide with the term as used on the Federal estate tax return,
to wit, assets before deduction of debts, charging administrative
costs to the residue is more consistent with that meaning.
Moreover, no language in Mrs. Fagan's will expresses an intent
contrary to the use of "gross estate" as a technical term.
The final clause in the first sentence of Article II,
referring only to estate taxes, and similar limiting language in
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