De Castro's Estate v. Commissioner of Internal Revenue , 155 F.2d 254 ( 1946 )

155 F.2d 254 (1946)

DE CASTRO'S ESTATE
v.
COMMISSIONER OF INTERNAL REVENUE.

No. 226.

Circuit Court of Appeals, Second Circuit.

April 22, 1946.

Laurence Graves, of New York City, for petitioner.

Sewall Key, of Washington, D. C., (Helen R. Carloss and Muriel S. Paul, both of Washington, D. C., of counsel), for respondent.

Before L. HAND, SWAN and FRANK, Circuit Judges.

FRANK, Circuit Judge.

In Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S. Ct. 291, 73 L. Ed. 647, the will gave the wife a life estate with authority to use from the principal any sum "that may be necessary to suitably maintain her in as much comfort as she now enjoys." In Merchants National Bank of Boston v. Commissioner, 320 U.S. 256, 64 S. Ct. 108, 88 L. Ed. 35, the Court purported to distinguish the Ithaca Trust case. Whether, in doing so, the Court so narrowed its scope as virtually to overrule it sub silentio we need not here consider. For we agree with the Tax Court that the instant case is controlled by Merchants National Bank.

Affirmed.