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comfort, and welfare, in light of her accustomed manner of
living.
The expression, “in accordance with the surviving spouse’s
accustomed manner of living” modifies and limits the expression
that precedes it: “all of the net income from the trust estate as
the trustee, in the trustee’s reasonable discretion, shall
determine to be proper for the health, education, or support,
maintenance, comfort and welfare”. In Estate of Ellingson v.
Commissioner, 964 F.2d 959, 964-965 (9th Cir. 1992), revg. 96
T.C. 760 (1991), the Court of Appeals for the Ninth Circuit, the
circuit to which any appeal of the instant case would lie, stated
that,
the language used by the Nicholson trust [in Estate of
Nicholson v. Commissioner, 94 T.C. 666 (1990)]--‘usual
and customary standard of living’--is much narrower and
more specific than that used in this
case--‘best interests.’ Interpreting the Nicholson
trust as qualifying for the QTIP deduction would have
required the Tax Court to ‘rewrite the trust
instrument.’
The “usual and customary standard of living” clause under
consideration in the instant case is analogous to the clause in
Estate of Nicholson v. Commissioner, supra, and distinguishable
from the “best interests” clause directly considered by the court
in Estate of Ellingson v. Commissioner, supra. The language in
the amended trust is more restrictive than the “best interests”
language in the trust in Estate of Ellingson v. Commissioner,
supra. The use of the word “comfort” in the amended trust is
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