- 20 - (1st Cir. 1955), two cases pursuant to section 2056(b)(5) and its predecessor cited by respondent, are distinguishable from the facts of this case. In Estate of Walsh v. Commissioner, supra at 395, the trust provided that “If said spouse should at any time be determined as incompetent * * *, said spouse shall take no benefits hereunder and this Trust shall be treated and distributed as if said spouse had died”. (Emphasis added.) The Court held the incompetency provision created a terminable interest which did not qualify for the marital deduction pursuant to section 2056(b)(5). Similarly, in Estate of Tingley v. Commissioner, supra at 403, the trust provided: such right of my wife to call for the transfer or conveyance to her of any part or parts or the whole of the principal of said first share shall cease in the case of her legal incapacity from any cause or upon the appointment of a guardian, conservator, or other custodian of her person or estate; and in the event of such legal incapacity, or appointment of any guardian, conservator or other custodian of her person or estate, my said wife or her guardian, conservator or other custodian shall cease to have any further right to the payment to her or such representative of any specified sum or of any part of the income from said first share, but my trustee shall thereupon and thereafter, during her life, have full power and discretion to use and apply such part of the net income of said first share for the benefit of my said wife or may pay such part thereof at any time or from time to time to her or to any such guardian, conservator or other custodian of my wife’s person or estate as he may deem in his sole discretion to be wise and proper, and shall accumulate, invest or reinvest any part of said net income not so paid or applied by him as aforesaid and shall have power to add the same to the principal of said first trust or thereafter to disburse it to or for the benefit of my said wife, whether or not previously so added to such principal. [Emphasis added.]Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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