In re the Estate of Shapleigh

BLACKMAR, Judge,

concurring.

I agree with the holding in the principal opinion that the holder of a testamentary power should be able to release and destroy the power by unilateral act during lifetime. The holding might contravene the intention of the testator, who presumably intended that the donee retain the power until death, but it is in accord with the weight of authority, and promotes the free alienation of property.

It does not necessarily follow that, simply because the power may be released, the property subject to the power may be freed from a tax which would attach whether or not the power is exercised by will. By the state’s analysis, however, the release of the power during lifetime is the equivalent of a gift to the takers in default, and Missouri had no gift tax during the time the late Inheritance Tax was in force. Nor does a release executed 32 years before the do-nee’s death constitute a transfer in contemplation of death within the compass of former § 145.020.1(3), RSMo 1978. I agree that the tax is not owing under § 145.030, RSMo 1978.