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The Court held that the testator intentionally chose to “cut off”
his wife’s right to income should one of the stated contingencies
occur. Id. at 405. The surviving spouse’s power of appointment
was not exercisable in all events, and the interest did not
qualify for the marital deduction under the predecessor to
section 2056(b)(5). In both cases, the critical fact was that,
in the event of incompetency or incapacity, the surviving spouse
lost power over the corpus of the trust. See Estate of Walsh v.
Commissioner, supra at 399-400.
Here, section 8 of the trust agreement provides that the
trustee “shall” distribute at least annually the net income of
the trust to or for the benefit of Mrs. Whiting. This is a
positive and mandatory directive to the trustee which precludes
the exercise of discretion. See Merchants Natl. Bank v. United
States, 326 F. Supp. 384, 387 (N.D. Iowa 1971) (language
permitting trustee to accumulate income found to be “void for
repugnancy” as it directly conflicted with mandatory language
requiring trustee to distribute income). We also note that
pursuant to section 19.D. of the trust agreement, the trustee
“must” provide Mrs. Whiting with the all of the trust income and
principal to which she is entitled. In viewing the entire trust
agreement and in construing the conflicting terms of the
disability section in accordance with decedent’s intent to obtain
the marital deduction, we conclude that the terms of the
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