Estate of Merle Allen Whiting, Jr., Deceased, Vicki Ann Whiting, Executrix - Page 20

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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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