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(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.]
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