Martin v. Commissioner

Estate of Sergeant Price Martin, Deceased, Philip Price, Adrian Block, Reuben Brost, Nelson C. Brown, and Alice Baker Brown, Executors, Petitioners, v. Commissioner of Internal Revenue, Respondent

Martin v. Commissioner

Docket No. 42069

United States Tax Court

23 T.C. 725; 1955 U.S. Tax Ct. LEXIS 258;

January 27, 1955, Filed

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Decision will be entered under Rule 50.

Decedent's great-grandfather created a testamentary trust. Decedent's mother had a life estate in and a testamentary power of appointment over a portion of the income and corpus of the trust. She predeceased decedent. Decedent died without issue before the end of the trust. Whether decedent's estate had any interest in income of the trust until it ended depends upon whether decedent's mother effectively exercised her power, and, also, upon construction of her appointment. Held, that decedent's mother effectively exercised her power; that she intended that upon decedent's death without issue before the end of the trust, his share of trust income should pass to her other surviving children in being at the end of the trust; and, therefore, that there should not be included in decedent's gross estate under section 811 (a) the value of an interest in a share of the trust income for the period from decedent's death until the end of the trust.

George Craven, Esq., for the petitioners.

William G. Handfield, Esq., for the respondent.

Harron, Judge.

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HARRON

The Commissioner determined a deficiency in estate tax in the amount of $ 222,607.99. The petitioners claim that there is no deficiency; they claim, further, that there is overpayment of estate tax in the amount of $ 17,503.04.

The Commissioner has receded from certain determinations. One issue remains for decision, whether the decedent had a vested interest, under the will of the settlor of a testamentary trust, in trust income (one-ninth) during the term of the trust, which is includible in his gross estate under section 811 (a) of the 1939 Code.

FINDINGS OF FACT.

The stipulated facts are found according to the stipulation of the parties. The stipulation of facts and the attached exhibits, including the will of Eli K. Price, are incorporated herein by this reference.

Although certain questions are no longer at issue, extensive facts must be found which are necessary for understanding the remaining issue.

The petitioners are the duly appointed executors of the will of the decedent, Sergeant Price Martin, who died testate, a resident of the State of New York, on January 9, 1948. He was about 61 years of age at the time of his death. He died without issue. His estate tax return was timely filed with the collector of internal revenue for the twenty-eighth district of New York in Buffalo. The return reported estate tax liability of $ 17,503.54 which was paid.

The decedent was the great-grandson of Eli K. Price, the grandson of John Sergeant Price, and the son of Elizabeth Price Martin.

Eli K. Price, hereafter called the testator, died testate on November 15, 1884. Under his will two-thirds of his residuary estate was impressed with a trust for the benefit of his four grandchildren and their families. The trust is referred to hereafter as the Price Trust.

The testator was survived by his son, J. Sergeant Price; three grandchildren who were children of J. Sergeant Price, namely, Eli K. Price, Jr., Elizabeth C. Price (who became Elizabeth Price Martin), and J. Sergeant Price, Jr.; and by a fourth granddaughter, Anna R. Withers (who became Anna R. Withers Martin), the daughter of the testator's deceased daughter, Rebecca Price Withers. The testator's son, J. Sergeant Price, died on August 16, 1897.

By the testator's will, each grandchild was given a testamentary power to appoint one-tenth of his or her share of the trust income to his or her surviving spouse for life, and "all the rest of his or her share of such income, under and during the trust, and his or her proportionate share * * * of the reversionary estate * * * to and among his or her children or their child or children, as they may respectively think proper, as to proportion, limitations and estates, and as the law will permit, or wholly omitting some as he or she may think there is occasion." The testator's will provided, also, as follows:

But, if he or she should make no appointment, and leave a child or children to survive, or their issue, these so living shall take said share of the income and of the reversion * * *, as they would take the real and personal estate of the decedent by the intestate laws of Pennsylvania, but subject to said trust while it shall endure. But, should any such grandchild of mine leave no child or issue living at his or her death, the said other children or child of my son [and daughter] shall take the share of the decedent, equally, under this section of my Will, and the surviving issue of any then deceased child shall take the share the deceased would have taken, if then living, in the shares they would take his or her intestate estate, but subject to said trust during its assigned limitation: * * *

Under the will of Eli K. Price, the trust was to exist during the lives of his son and grandchildren and of their children in being during the life of Eli K. Price, and also during the minority of their children coming into being after the death of Eli K. Price; or during the life of the survivor of those in being during the life of Eli K. Price, or the majority of those coming into being after his death, whichever shall be the latest in time. The settlor expressed in his will his intention not to violate the rule against perpetuities.

The last surviving life measuring the term of the trust was that of the decedent's uncle, J. Sergeant Price, Jr. At the time of our decedent's death he was unmarried; he was 74 years old. J. Sergeant Price, Jr., died on June 16, 1948, about 5 months after the death of our decedent. At the time of his death he was unmarried and without issue. The trust terminated upon the death of J. Sergeant Price, Jr.

Elizabeth Price Martin, our decedent's mother, died on April 5, 1932. Eli K. Price, Jr., died on January 24, 1933. Anna R. Withers Martin died on November 9, 1937, and her husband, Edward Martin, died on March 17, 1938.

Elizabeth Price Martin was survived by three children (including our decedent), and five grandchildren, all being the children of one of her daughters, Marion W. Rivinus. At the time of her death, the ages of her survivors ranged from 3 to 45 years.

Eli K. Price, Jr., was survived by four children, all of whom survived Elizabeth Price Martin, and all of whom were living upon the termination of the trust.

No children survived Anna Martin. Therefore, under the will of Eli K. Price, Anna Martin's proportional share of the trust and of the trust income merged with and became part of the shares of the children of John Sergeant Price, namely, Eli K. Price, Jr., Elizabeth Price Martin, and J. Sergeant Price, Jr. ^{*264 Elizabeth P. Martin, in her last will, exercised her power of appointment over her interest in the income and corpus of the Price Trust in the following terms:}

Having disposed as aforesaid of my entire estate, I appoint in exercise of the power conferred upon me by the will of my grand-father, Eli Kirk Price, all my share of the income of his estate under and during the continuation of the trust created by his will and my proportionate share of the reversion of his estate under said will to and among my children living at the date of the termination of the trust and the issue of any of them then deceased in equal shares per stirpes.

The survivors of our decedent, in addition to his uncle, J. Sergeant Price, Jr., were the four children of Eli K. Price, Jr., deceased, namely, Philip Price, Eli K. Price, III, Evelyn Hamilton, and Rachel P. Williamson; his two sisters, E. Gwen Martin and Marion W. Rivinus; and five children and eight grandchildren of Marion W. Rivinus. All of these individuals were alive when the Price Trust ended. When our decedent died, the ages of the surviving issue of Elizabeth Price Martin ranged from 1 to 58 years.

Our decedent was survived by 20 descendants of the testator, Eli K. Price, of whom 15 were descendants of Elizabeth Price Martin.

Eli K. Price, the testator, expressed the intention in his will that his children and their grandchildren should share in the trust "as nearly equally as practicable." His will provided, inter alia, in paragraph 22, as follows:

But, if he or she [a grandchild] should make no such appointment, and leave a child or children to survive, or their issue, these so living shall take said share of the income and of the reversion of my residuary estate, as they would take the real and personal estate of the decedent by the intestate laws of Pennsylvania, but subject to said trust while it shall endure. But, should any such grandchild of mine leave no child or issue living at his or her death, the said other children or child of my said son [John Sergeant Price] shall take the share of the decedent, equally, under this section of my Will, and the surviving issue of any then deceased child shall take the share the deceased would have taken, if then living, in the shares they would take his or her intestate estate but subject to said trust during its assigned limitation: * * *

After the death of Elizabeth P. Martin, the trustees of the Price Trust were unwilling to accumulate any of the income of her share of the trust principal for fear of making an unlawful accumulation of income. Therefore, they distributed the income of her share of the trust equally among her three surviving children, including the decedent, even though Elizabeth had appointed in her will, under her exercise of her power of appointment, all of her share of the income of the trust to her children "living at the date of the termination of the trust and the issue of any of them then deceased." Accordingly, our decedent received a share of the trust income during the remainder of his life.

Prior to the death of our decedent, the proportionate share of Elizabeth Price Martin, deceased, in the trust principal amounted to one-third, *267 After the termination of the Price Trust on June 16, 1948, the trustees of the trust filed a petition and an account and a statement of proposed distribution of the trust corpus with the Orphans' Court of Philadelphia County, Pennsylvania, which had jurisdiction over the trust. Due notice of the proceedings before the court was given to Nelson C. Brown, Alice Baker Brown, Reuben Brost, Adrian Block, and Philip Price, executors of the will of Sergeant Price Martin. Notice was given to others, not here material, and to the Commissioner of Internal Revenue, and to the United States Attorney in Philadelphia.

The proceeding in the Orphans' Court was an in rem proceeding to determine the interests in the trust under the will of Eli K. Price, which was subject to the jurisdiction of the court.

The trustees filed with the Orphans' Court, as part of their final account, a schedule of a proposed award of distributive shares of trust principal and income, and asked the court to make awards of the trust principal to the persons and in the proportions listed, and to award the trust income in the proportions and to the persons listed. In the trustees' schedule, the estate of our decedent, Sergeant Price Martin, was not listed as a recipient of any trust income. Neither was his estate or any person listed as a distributee of any of the trust corpus.

The trustees of the Price Trust, in connection with their statement of proposed distribution, submitted two questions to the Orphans' Court for adjudication, one of which is not material in this proceeding. The question submitted for adjudication which is material in this proceeding, was as follows:

Whether the estate of Sergeant Price Martin, who predeceased the termination of the trust, is entitled to a one-ninth share of the trust income accruing during the period between his death and the termination of the trust.

The Orphans' Court, following audit of the trustees' final account under the will of Eli K. Price, entered its adjudication on July 3, 1950. The court determined, inter alia, as follows:

Two questions are noted as requiring adjudication. The first of these questions has to do with whether or not the estate of Sergeant Price Martin, who predeceased the termination of the trust dying on January 9, 1948, without leaving issue, is entitled to a one-ninth share of the trust income accruing during the period between his death and the termination of the trust. It is quite evident that the estate of Sergeant Price Martin is not entitled to any income which accrued after the date of his death. His mother, Elizabeth Price Martin, appointed her share of income to and among my children living at the date of the termination of the trust and the issue of any of them then deceased in equal shares per stirpes. Obviously, she intended any issue of Sergeant Price Martin to succeed to his share of income upon his death, but since he left no issue, by implication she must have intended his share of income to augment the shares of her other children from the date of his death until termination of the trust. Accordingly, it is so ordered.

The Orphans' Court, in its adjudication of July 3, 1950, recognized, as effective, Elizabeth P. Martin's exercise of her power of appointment in her will of her proportionate share of the trust principal. The court approved distribution by the trustees to her children living at the date of the termination of the trust, namely, one-sixth of the principal of the trust to E. Gwen Martin, and one-sixth to Marion Rivinus.

The court in its decree recognized the exercise by Eli K. Price, Jr., deceased, of his power of appointment of his proportionate share of the principal of the trust and of the income from his proportionate share. With respect to his proportionate share of the trust principal, he had bequested his share of the principal to his children alive at the termination of the trust.

The court in its decree recognized that under the will of Eli K. Price, the settlor, in default of issue of any child of J. Sergeant Price (who was in being during the lifetime of Eli K. Price), his proportionate share of principal was to become part of the share of his deceased brother and sister. Accordingly, with respect to J. Sergeant Price, Jr.'s share of the trust principal (who died without issue, never having been married) the court approved distribution to E. Gwen Martin, Marion Rivinus, Philip Price, Eli K. Price, III, Evelyn Hamilton, and Rachel Williamson (children of his deceased brother and sister), all of whom survived the termination of the trust. The share of trust principal of J. Sergeant Price, Jr., passed under the terms of the will of Eli K. Price, the settlor, since J. Sergeant Price, Jr., died without issue.

The court also approved distribution of the proportionate share of Eli K. Price, Jr., in the principal of the trust to his children, Philip Price, Eli K. Price, III, Evelyn Hamilton, and Rachel Williamson, as appointees of Eli K. Price, Jr., one-twelfth of the trust principal to each.

The court did not order distribution of any part of the trust principal, or of the income derived from any part of the trust principal, to the estate of Sergeant Price Martin, the decedent in this proceeding.

The principal of the Price Trust was distributed, therefore, under the decree of the Orphans' Court to the persons named below in the proportions set forth:

E. Gwen Martin:
Directly under terms of Eli K. Price's will, since
J. Sergeant Price, Jr., died without issue	1/12
As appointee of Elizabeth Price Martin	1/6
		1/4 of principal
Marion W. Rivinus:
Directly under terms of Eli K. Price's will, since
J. Sergeant Price, Jr., died without issue	1/12
As appointee of Elizabeth Price Martin	1/6
		1/4 of principal
Philip Price:
Directly under terms of Eli K. Price's will, since
J. Sergeant Price, Jr., died without issue	1/24
As appointee of Eli Kirk Price, Jr	1/12
		1/8 of principal
Eli Kirk Price, III:
Directly under terms of Eli K. Price's will, since
J. Sergeant Price, Jr., died without issue	1/24
As appointee of Eli Kirk Price, Jr	1/12
		1/8 of principal
Evelyn Hamilton:
Directly under terms of Eli K. Price's will, since
J. Sergeant Price, Jr., died without issue	1/24
As appointee of Eli Kirk Price, Jr	1/12
		1/8 of principal
Rachel P. Williamson:
Directly under terms of Eli K. Price's will, since
J. Sergeant Price, Jr., died without issue	1/24
As appointee of Eli Kirk Price, Jr	1/12
		1/8 of principal

No exceptions were taken to the adjudication of the Orphans' Court dated July 3, 1950, and the trustees' final account was confirmed absolutely.

The Surrogate's Court of Erie County, New York, which had jurisdiction over the estate of our decedent, Sergeant Price Martin, by an order and decree entered October 13, 1950, determined that the decedent's estate had no interest in the income of the Price Trust, under the will of Eli K. Price, from January 9, 1948, the date of our decedent's death, to June 16, 1948, the date of termination of the trust, and that the executors of the decedent's estate were entitled to a refund of New York estate tax paid on the value of such income.

On January 9, 1948, the decedent had claims for the refund of Federal income taxes paid during his lifetime. The value of all such claims on that date was $ 2,816.44.

On April 1, 1952, a claim for the refund of Federal estate tax on the decedent's estate in the amount of $ 17,503.04 was filed with the collector of internal revenue for the twenty-eighth district of New York in Buffalo. No notice of allowance or rejection of the refund claim has been received from the Commissioner.

The decedent's estate is entitled to deduct such amounts for executors' commissions, attorneys' fees, and miscellaneous expenses of administration as may be established at the time of the recomputation under Rule 50.

OPINION.

The Commissioner determined in his deficiency notice (a) that the decedent had a vested remainder interest in one-eighteenth of the trust corpus, after the life estate of J. Sergeant Price, Jr., having a value at the time of decedent's death of $ 213,828.73, and (b) a vested interest in one-ninth of the trust corpus, after the life estate of his mother, Elizabeth Price Martin, having a value at the time of decedent's death of $ 561,119.80, and that these interests are includible in decedent's gross estate under section 811 (a) of the 1939 Code. Both of these determinations were founded upon the view that the decedent had these vested interests under the will of Eli K. Price. With respect to the interest in one-ninth of the trust corpus, the Commissioner took the position that Elizabeth Price Martin failed to exercise her power of appointment properly so that there was default of appointment. The Commissioner, on brief, receded from both determinations.

The executors of decedent's will included in gross estate in the estate tax return, at $ 107,557.41, the value of a right to receive one-ninth of the trust income until the termination of the trust. In their petition to this Court, the petitioners pleaded that such interest is not includible in the gross estate. The Commissioner contends that such interest is includible under section 811 (a), and that the value thereof at decedent's death was $ 114,133.30. This is the only question remaining for decision.

The decedent's mother, Elizabeth Price Martin, had a testamentary power of appointment over the income of her proportionate share of the Price Trust, as well as over part of the trust corpus, during the term of the trust, which she exercised in her will. The parties are agreed that at the time of our decedent's death, Elizabeth's proportionate share of the trust was one-third (the interest of Anna R. W. Martin having fallen in upon the deaths of herself and of her husband without issue), and that if our decedent had an interest in the income of such share of the trust, his interest at the time of his death was one-ninth.

The petitioners contend that Elizabeth effectively exercised her testamentary power of appointment; that, properly construed, her appointment was to her child or children living from time to time during the term of the trust; and that the interest of our decedent and his estate in trust income was cut off by his death prior to the termination of the trust.

The petitioners first rely upon the adjudication of the Orphans' Court on July 3, 1950, which determined, among other things, that our decedent's estate had no interest in any income of the trust upon and after the death of our decedent. The petitioners contend that the adjudication of the Orphans' Court involved a determination of property rights, and, therefore, its adjudication is controlling and is binding upon us, whether or not the proceeding in the Orphans' Court was contested, citing Freuler v. Helvering, 291 U.S. 35">291 U.S. 35, 45; Blair v. Commissioner, 300 U.S. 10">300 U.S. 10; Uterhart v. United States, 240 U.S. 598">240 U.S. 598, 603; Helvering v. Bullard, 303 U.S. 297">303 U.S. 297; Sharpe v. Commissioner, 107 F. 2d 13, certiorari denied 309 U.S. 665">309 U.S. 665; and Estate of Blanche B. Gilbert, 4 T.C. 1006">4 T. C. 1006.

Petitioners point out that the proceeding in the Orphans' Court was an in rem proceeding (which is true), and they cite Wormley Estate, 359 Pa. 295">359 Pa. 295, 299, 59 A. 2d 98, where the court said in reference to an accounting proceeding over principal and income of an estate:

in such proceedings, which are strictly in rem, it certainly had jurisdiction over any interested person, if properly notified, even though without the jurisdiction and not otherwise subject to the power of the State.

In Princess Lida v. Thompson, 305 U.S. 456">305 U.S. 456 (relied upon by petitioners), involving an accounting proceeding by a trustee in the Orphans' Court of Pennsylvania, the Court said (at p. 464):

The jurisdiction extends to a trust like the present created by deed or voluntary agreement. The audit and confirmation of the account is to be had after advertisement and other forms of notice and is binding on all those anywise interested in the estate who have had the required statutory notice of the audit.

We agree with petitioners that the estate of our decedent was a party to the proceeding in the Orphans' Court.

The respondent argues that the determination of the Orphans' Court is not binding upon this Court. He relies solely upon Susan Young Eagan, et al., Executors, 17 B. T. A. 694, 702, reversed on other grounds 43 F.2d 881">43 F. 2d 881. That case presented the question whether a bequest by a decedent qualified for the estate tax charitable deduction. Although the Court held the deduction allowable, it rejected the taxpayer's contention that the right to the charitable deduction was governed by a State statute or decree and held that the charitable purpose must be determined under the Federal estate tax statute. The Eagan case, unlike this case, did not present a question of a property right under State law. The distinction is well stated in G. C. M. 20965, 1939-1 C. B. (Part 1) 194, 195, as follows:

It is the opinion of this office that the decree of the Orphans Court of R County, State of S, until reversed or overruled establishes the law of that State as to the distribution of the income in question. It is a well recognized rule that where the question involved is the meaning of a Federal revenue law, the will of Congress controls over local law. ( Eagan v. Commissioner, 43 Fed. (2d), 881). However, when the application of the Federal revenue law is dependent upon facts which can be interpreted only in accordance with State rules of property, the State rule must prevail. Such appears to be the situation here.

Whether or not the adjudication of the Orphans' Court is binding upon us ^{*279 of the appointment of the trust income by the will of Elizabeth Price Martin is that the income shall go to her issue living from time to time during the trust term, so that the interest of this decedent and his estate in the trust income was cut off by his death. We conclude that the will of Elizabeth Price Martin made a valid appointment of her share of trust principal to her children and the issue of deceased children living at the date of the termination of the trust. The income was appointed in the same manner.}

If the will of Elizabeth Price Martin is construed literally, there was a possible invalidity of the appointment of income, since her children who survived the termination of the trust could not be determined at the time of her death and hence an invalid accumulation of income would have been involved. However, in Pennsylvania a literal interpretation of a will is to be avoided in order to arrive at the testator's general intent. Lewis' Appeal, 18 Pa. 318">18 Pa. 318. Her intent here obviously was to give the income during the term of the trust to her children living from time to time and who would receive the trust principal on the termination of the trust. Where possible, an interpretation will be avoided which would lead to an unreasonable result or an invalid limitation. Renner Estate, 358 Pa. 409">358 Pa. 409, 57 A. 2d 836.

In Walker Estate, 376 Pa. 16">376 Pa. 16, 101 A. 2d 652, the court said at pp. 22-23:

A construction will be avoided which would lead to an unnatural, improbable or absurd result, and which, under all the language in the will, would constitute a highly improbable testamentary intent.

The court said further (at p. 24) that in construing a will a testator is presumed not to have intended to die intestate.

Similarly, here, where Elizabeth Price Martin plainly intended that the income and principal of her share should go to living children, a construction is to be avoided which would be contrary to that intent or would result in a failure of disposition of income. We take the view, therefore, that the Orphans' Court correctly construed the appointment of income to those issue of Elizabeth Price Martin who were living from time to time.

Even if the above-mentioned rule of construction adopted by the Orphans' Court is disregarded and the trust income is deemed to pass under the provisions of the will of Eli K. Price for disposition in default of appointment, the result is the same and the income passed to the issue of Elizabeth Price Martin living from time to time during the trust term.

The rule governing the right to receive income during the trust term of a person whose right to receive principal depends on surviving the termination of the trust is stated in Wood's Estate, 321 Pa. 497">321 Pa. 497, 501, 13">184 Atl. 13, where the facts were quite similar to those of this case. In that case the testator's will left property in trust with direction to the trustees to divide the income into three lots. The will then provided as follows (p. 499):

During the lifetime of my brother Edward R. Wood, should he survive me, the one-third part of one of said lots shall be paid to him, and the remaining two-thirds part of said lot shall be divided equally between such of his children as may survive me, and in case of the death of my said brother, the entire lot shall be divided equally between the children who survive.

A principal distribution was directed at the dates of the deaths of testator's brother Edward and another brother and a sister, of which a portion was to be paid to Edward's sons, Charles R. Wood and Edward R. Wood, Jr. The testator was survived by his brother Edward and four of his children, of whom two children, Charles R. Wood and Edward R. Wood, Jr., died prior to the termination of the trust and prior to the death of their father, Edward. It was held that the income paid to the deceased children during their lifetimes became payable on their deaths to the remaining children of Edward and not to the estates of the deceased children. The court said at pp. 500-501:

In a gift of income to a class, where a member of the class dies without issue before the time for principal distribution, the share of that member falls in and, in the absence of a contrary intent, increases the shares of the surviving members of the class, who therefore take in preference to the personal representatives of the deceased member. [Citing cases.] * * * In a gift of income, distributees are to be ascertained at each periodic distribution by the formula provided by testator: [Citing cases.] This is necessarily true even though testator does not specifically direct a periodic payment; for, from the nature of a gift of income, there must be periodic distribution, whether annually, semiannually, or otherwise, and the distributees must be determined anew at each such period. It follows that, where income is given to a class, the distributees entitled to take at any period of distribution are the members of the class who are alive at that time, or, where representation by issue is provided, the living issue of deceased members.

See also Anderson Estate, 165 Pa. Super. 353, 67 A.2d 783">67 A. 2d 783.

The language of the will in the Wood case is quite similar to the language of the will of Eli K. Price. In the Wood case, the testator gave the income to "such of his [the brother's] children as may survive me," and it was held that the share of income of children dying after the testator's death and during the trust term should go to living children of the brother and not to the estates of the deceased children. Here, the will of Eli K. Price provided that if a grandchild of the testator made no appointment and left "a child or children to survive, or their issue, these so living shall take said share of income." It follows from the Wood case that on the death of Sergeant Price Martin, his share of income went to his sisters, the living children of Elizabeth Price Martin, to whom the principal was appointed on termination of the trust.

Moreover, the will of Eli K. Price shows a clear intention throughout that his property and the income from his property shall go only to living descendants and not to estates of deceased descendants.

It is held that the decedent's estate had no interest in any share of income of the Price Trust during the remainder of the term of the trust, and that the value of such interest is not includible in decedent's gross estate.

Decision will be entered under Rule 50.

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Footnotes

• 1. There is no issue in this proceeding about this matter which is clearly provided for in the will of Eli K. Price. This being so, it is unnecessary to set forth the provisions of the will which so provide.↩

• 2. There is no issue in this proceeding, or dispute, about this point. The share of Elizabeth P. Martin in the trust principal became one-third upon the death of Anna Martin without surviving issue.↩

• 3. Estate of Ralph Rainger, 12 T. C. 483, 495. Cf. Estate of Sallie Houston Henry, 47 B. T. A. 843, 849; Estate of Rose M. Harter, 3 T. C. 1151; Estate of George H. Balzereit, 46 B. T. A. 959, 961; Letts v. Commissioner, 84 F. 2d 760↩.