Estate of Hon Hing Fung, Deceased, Bernard Fung, Executor - Page 19




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               In light of the foregoing, the estate contends a marital               
          deduction is allowable for the full value of decedent’s interest            
          in the California property received by the surviving spouse,                
          while respondent maintains that only three-eighths of the value             
          of decedent’s interest in the Monte Vista and Calle Victoria                
          parcels may be considered in computing the deduction.                       
               More specifically, the estate’s position is that “The U.S.             
          property received by the surviving spouse was in bona fide                  
          recognition of her rights to 3/8ths of the entire residue of                
          decedent’s estate and therefore passed from the decedent.”                  
          Respondent, in contrast, interprets the language of the will as             
          granting to the surviving spouse only an undivided three-eighths            
          interest in each residuary asset.  Thus, as framed by the                   
          parties, the dispute turns on what rights in the residuary pool             
          were afforded to decedent’s wife by the terms of his will and               
          Hong Kong law.                                                              
               However, we need not address this challenging question of              
          will construction.  Even if we were to assume for the sake of               
          argument that the fractional share legacy set forth in decedent’s           
          will could be construed as a right to three-eighths of the                  













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