Estate of Ralph H. Davis, Deceased, Evelyn Davis, Personal Representative - Page 18




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          limited by the expression, “in accordance with the surviving                
          spouse’s accustomed manner of living.”  Accordingly, we interpret           
          the language of the amended trust to mean that the surviving                
          spouse does not have such “command over the income that it is               
          virtually hers”.  See sec. 20.2056(b)-5(f)(8), Estate Tax Regs.9            
          In the instant case, Section Four of the amended trust provides             
          that the trustee, in exercising reasonable discretion, may                  
          consider “any other income or resources of the beneficiary known            
          to the trustee and reasonably available.”10  In the instant case,           
          Section Two of the amended trust limits the surviving spouse’s              
          entitlement to income without using the term “best interests”.              
          Moreover, in the instant case, the clause under consideration is            
          much narrower and more specific than the “best interests” clause            
          considered by the court in Estate of Nicholson v. Commissioner,             
          supra.  We conclude that the foregoing limitations prevent the              
          surviving spouse from being entitled to the entire income from              
          the trust.                                                                  
               Moreover, the surviving spouse’s role as sole trustee under            
          the trust does not assure her the requisite control over the                

               9The court in Estate of Ellingson v. Commissioner, 964 F.2d            
          959 (9th Cir. 1992), revg. 96 T.C. 260 (1991), concluded that to            
          effectuate the decedent’s intent, paying the surviving spouse               
          such amount of the income necessary for her “best interests”                
          meant paying her all of the trust income.                                   
               10In the instant case, the decedent did not include in the             
          amended trust the “best interests” language that appeared in the            
          1993 trust.  Article One, Sections 1.1 and 1.2 of the 1993 trust            
          were amended by Section Two of the amended trust.                           




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