- 40 -
necessary to provide for her ‘support, comfort and happiness’”.
Id. at 485. The Commissioner, as here, argued that the amount of
income to which the surviving spouse was entitled was limited and
that accumulation was permitted. See id. at 486.
The District Court analyzed the language of the trust
instrument in light of the Georgia statutory law and concluded:
since the trust instrument is “silent” as to time of
income distribution, I must perforce read Item XXIV to
mean that “the trustees shall pay to my wife all the
net income derived from the trust property at least
annually”.7 I cannot agree with an interpretation of �
108-446 that would make � 108-445 inoperative here on
the theory that the language of the Bodziner trust
amounts to express permission to the trustees to
distribute net income on a less frequent basis than
annually.
* * * The intent of the Act of 1960 (Ga. Code �� 108-
445, 446) was to make discretionary income trusts that
are silent as to frequency of payment eligible for the
marital deduction. The requirement of the statute that
under such a trust all net income must be paid by the
trustees at least annually must be read into the
Bodziner trust, delimiting any fiduciary discretion in
such respect.
_____________
7 The Act of 1960 does not mean that discretionary income
trusts have seen their day in Georgia. Silence of the instrument
as to time and frequency of distribution has become a limitation
rather than a grant of fiduciary authority. Such a trust will
qualify for the marital deduction. So the Legislature reasonably
conceived. If the testator does not want it that way, he can
recite that it is his express wish that distribution of net income
may be on a less frequent than annual basis in the trustee’s
discretion. * * *
[Id. at 489 & n.7.]
Although we acknowledge that opinions of a U.S. District Court do
not constitute binding precedent in this Court, we find it
appropriate to give proper regard and weight to interpretations
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