Estate of Leona Engelman, Deceased, Peggy D. Mattson, Executor - Page 29

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          decedent’s disposition of the Trust A corpus by means of her                
          power of appointment became irrevocable at her death and cannot,            
          on account of the relation-back doctrine, be disregarded.                   
          Decedent acted to transfer the property of Trust A to those named           
          in her power of appointment, rather than to Trust B and its                 
          beneficiaries.  Ms. Mattson’s actions to do otherwise cannot be             
          attributed to decedent.                                                     
               As pertains to the gift to the State of Israel, caselaw is             
          contrary to the estate’s position.  The donor, not the donee,               
          must restrict use of the gift to charitable purposes.  The                  
          foregoing principle has been recognized by Federal courts both in           
          construing the predecessor of section 2055 in the Revenue Act of            
          1926, ch. 27, sec. 303, 44 Stat. 72, and in interpreting section            
          2055 itself.  See Contl. Ill. Natl. Bank & Trust Co. v. United              
          States, 185 Ct. Cl. 642, 403 F.2d 721 (1968); Levey v. Smith, 103           
          F.2d 643 (7th Cir. 1939).  As stated in an early pronouncement:             
                    Plaintiff urges that the statutory test “is the                   
               use to which the property is to be put.”  In our view                  
               the test is: For what purpose is the property devised?                 
               Consequently, a declaration by the donee that property                 
               will be used for a charitable purpose cannot determine                 
               the use for which it was bequeathed.  It is the act of                 
               the testator that determines, for purposes of                          
               deduction, whether gifts or contributions which have                   
               been bequeathed to a legatee “are to be used”                          
               exclusively for religious, charitable and educational                  
               purposes.  We do not hold that parol evidence is not                   
               admissible for the purpose of showing that a bequest,                  
               absolute on its face, was in fact intended by the                      
               testator and understood by the legatee to be burdened                  
               by a trust.  But such evidence to be material must                     
               relate to words or acts of the testator and must tend                  





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