Estate of Harry Fagan, Jr., - Page 6




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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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