256 F.2d 762

58-2 USTC P 11,804

Harold M. SOARS, Executor of the Estate of Lucilla M. Soars,
Deceased, Appellant,
v.
Francis P. GRAHAM, District Director of Internal Revenue for
the District of Scranton, Pennsylvania.

No. 12506.

United States Court of Appeals Third Circuit.

Argued April 24, 1958.
Decided May 21, 1958, Rehearing Denied June 10, 1958.

S. Dale Furst, Jr., Williamsport, Pa. (Malcolm Muir, Furst, McCormick, Muir & Lynn, Williamsport, Pa., on the brief), for appellant.

Loring W. Post, Washington, D.C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Attys., Dept. of Justice, Washington, D.C., Robert J. Hourigan, U.S. Atty., Scranton, Pa., on the brief), for appellee.

Before MARIS, KALODNER and HASTIE, Circuit Judges.

PER CURIAM.

1

In this case the executor of the estate of Lucilla M. Soars, deceased, has appealed from the judgment of the District Court for the Middle District of Pennsylvania in favor of the district director of internal revenue denying recovery of federal estate tax alleged to have been erroneously exacted. The decedent was the life beneficiary, with power to consume principal, under the will of her husband Stephen Soars, late of Muncy, Pennsylvania, and the tax was assessed upon the appreciated value at her death of certain shares of stock belonging to her husband's estate which she had not consumed. The theory of the government was that under the law of Pennsylvania the decedent was a debtor to the remaindermen under her husband's will for the value of the estate at his death and that any appreciation in its value at her death belonged to her. The plaintiff, conceding that under In re Powell's Estate, 1941, 340 Pa. 404, 17 A.2d 391, this would be so, asserts that this rule has been changed by In re Lyman's Estate, 1950, 336 Pa. 164, 76 A.2d 633. For the reasons set forth in the opinion of the District Court filed by Judge Follmer, 163 F. Supp. 239, to which we need add nothing, we are satisfied that the government's contention in this regard is right.

2

The judgment of the district court will be affirmed.