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District Court for the Southern District of Georgia in Friedman
v. United States, supra. These predecessor laws read:
Where the trust instrument is silent as to the
time of distribution of income and the frequency
thereof, all trustees of all trusts subject to the laws
of this State, whether heretofore or hereafter
established, shall distribute all net income derived
from the property comprising such trust at least
annually, on a calendar or fiscal year basis. [Ga.
Code Ann. sec. 108-445.]
In the case of any trust now in existence or
hereafter created where the trust instrument expressly
directs or permits net income to be distributed less
frequently than annually, the express provisions of
such instrument shall govern the time and manner of
making distributions of income. [Ga. Code Ann. sec.
108-446.]
The trust at issue in Friedman v. United States, supra at
484-485, instructed the trustees:
To pay to my wife, SOPHIE M. BODZINER, such part of the
net income as the Trustees may deem necessary to
provide for the proper support, comfort and happiness
of my wife. Said Trustees shall be authorized to
encroach upon the corpus of the trust estate at any
time and from time to time in such amounts as they may
deem necessary, taking into consideration the income of
my wife’s separate estate, to provide for the proper
support and comfort of my wife.
The question before the court was whether this trust satisfied
the all income payable annually requirement of section
2056(b)(5), which parallels that set forth in section 2056(b)(7).
See id. at 486. The court queried whether the trust qualified
for the marital deduction “where by its terms the entire income
from the trust property does not have to be paid annually to the
surviving spouse but only such part thereof as the trustees deem
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