*302 to Shriners Hospital for Crippled Children located at Chicago, Illinois, a devisee which was not a "qualified heir" within the meaning of section 2032A(e)(1). Under the terms of decedent's will and first codicil, the property was to pass into a trust, with the sister as trustee, and the net income from the trust was to be paid to decedent's daughter for life. Upon the daughter's death, the property was to be divided into three separate trusts with distributions as follows: (1) The net income from Trust One was to be paid to decedent's sister for life and then to decedent's grandson for his support, education and maintenance until he was 25 years old and then he was to receive the net income for any purpose whatsoever until he was 45, whereupon he would receive all accumulated income and the corpus of the trust. If the grandson failed to survive, the corpus and accumulated income of Trust One was to go into Trust Two. (2) The net income of Trust Two was to go to decedent's granddaughter for support, education and maintenance until her 25th birthday, whereupon she was to be paid all of the net income from the trust until her 45th birthday, at which time the accumulated income and corpus was to be distributed to the granddaughter. If the granddaughter did not survive, the net income was to go in equal shares to her children and their proportionate share of the trust income and corpus was to be distributed to them at age 25. If there were no children of the granddaughter, the contents of Trust Two would go into Trust One. (3) The net income of Trust Three was to be distributed equally for purposes of support, education and maintenance to the grandchildren of decedent until they should reach the age of 32, at which time they would receive their distributive share of the income and corpus of Trust Three. If either of the grandchildren did not survive, then their share would go to their children, and if neither had children, the surviving grandchild would take all. Trust Three was to terminate when the granddaughter reached her 42nd birthday.(4) In the event that Trusts One, Two and Three terminated due to the death of all beneficiaries, the will provided for a gift over to the Shriners Hospital for Crippled Children, Chicago, Illinois. The following schedule shows the date of birth of decedent's sister and lineal descendants:
The probability as of December 27, 1980, that none of decedent's lineal descendants or her sister would survive for a period of 15 years was .000116 percent. The probability that the children's hospital would receive the gift over for failure of a "qualified heir" was, with respect to the three trusts, no more than .008098 percent and no less than .002817 percent.
Section 2032A permits the valuation, for estate tax purposes, of real property used for "farming purposes" on the basis of actual use rather than at the fair market value for the highest and best use. Two recent Court reviewed opinions have considered section 2032A, section 20.2032A-8(a)(2), Estate Tax Regs., the use of successive interests in conveying the special use property to "qualified heirs," the effect of a gift over to a recipient who is not a "qualified heir" and the effect of a special power appointment on a "qualified heir" upon an estate's election of special use valuation. Estate of Davis v. Commissioner, 86 T.C. (June 11, 1986); Estate of Clinard v. Commissioner, 86 T.C. (June 11, 1986). In both Davis and Clinard, we found that section 20.2032A-8(a)(2), Estate Tax Regs. , was invalid to the extent that it would prohibit the testamentary disposition of property to "qualified heirs" where the testamentary scheme had provided for the possibility of a default in heirs by means of a gift over to a charitable beneficiary. We find the facts of this case to be no different from those in Davis and Clinard. By way of comparison, the Davis case presented a situation where the probability that none of the decedent's descendants would survive his three children so as to permit the trust property to pass to the contingent remainder beneficiaries (who were "qualified heirs") was only .0152 percent. The facts of this case reflect percentages that are even more persuasive in the taxpayer's favor because the probability is smaller -- ranging between .002817 percent and .008098 percent, depending upon which of the three trusts is being considered. The facts in this case reflect that this estate and its beneficiaries are entitled to the relief provided for in section 2032A. To the extent that section 20.2032A-8(a)(2), Estate Tax Regs., has been invalidated in the Davis and Clinard cases, the way has been cleared for this petitioner to obtain the relief Congress intended. We note that the parties chose not to file briefs in this case because of its similarity to both Davis and Clinard.
