*2 sister, said so that such HASTIE, and Before KALODNER may applied and income be thereto Judges, KIRKPATRICK, and if occasion arises as herein set forth. Judge. District my In order that said and in- desire out, specially tent be carried KIRKPATRICK, Judge. District order and direct that the petition This is a to review a decision pose support, maintenance, affirming of Tax Court the Commis- my the welfare and of comfort said of a deduction of sioner’s disallowance sister, any and for of a remainder from the value charitable my expedi- trustees shall deem gross Zentmay- of estate Dr. William ent, necessary or desirable for the er, physician had who attained em- my my benefit or said ophthalmology. inence in the field of said trustees shall have full right spend pay my and to of a deduction of a and out of Allowance part parts said in estate such charitable remainder cases where the my will of said allows the to trust as the estate any depends upon trustees shall be at time deem ex- invaded there pedient, necessary desirable, the will an if ascertainable standard charity the income shall be deemed the amount that the them My purposes. insufficient for at receive the termination of the life interest can accuracy. calculated have absolute discre- with reasonable Every respect tion in this and the exercise since Ithaca Trust Co. States, 151, them such shall discretion S.Ct. upon, right that, conclusive without L.Ed. provides it is settled if question objection by, any corpus the will can be parties all or to interested become invaded to the extent my pro- beneficiary interested estate. The maintain the life in his or by my trustees, duction successors, living, said her accustomed manner such a receipts or vouchers standard is and the charitable expenditures payments for such bequest can be deducted. On the other discharge shall hand, goes be a full saying the ex- it almost without thereof, tent and their action so corpus if the trust or some unascertain expending paying shall with- part of able charity, it can from be diverted liability part out charity what will receive trustees, for waste or otherwise.” cannot be valued and be no de respect duction in of it. This case turns Upon beneficiary, death of life entirely upon it whether was this testa residuary goes bulk of tor’s intention restrict of varying proportions to charities eleven providing money invasion to needed to most of which were devoted the care maintain his sister in her accustomed eye study ophthalmology. living. Zentmayer 18, 1958, Dr. died March at paragraph The FOURTH of Dr. Zent- age leaving residuary mayer’s bequeaths residuary es- approximately $478,000. He had made pay tate to net income years earlier, seven at a time sister her life. when his sister was 80 old. Testi- gives paragraph The FIFTH to the . mony offered powers trustees certain surrounding and his at the testator principal. paragraph is as follows: made, time will was “It desire and intent need not be reviewed detail evidence because, best, fact, parts my estate, and all establishes stipulated Court, namely, Turning now the the first possibility paragraph, “the invasion of FIFTH stand negligible ing alone, might interpreted determines to have restricting the terms and the will set forth a definite the effect the extent to *3 ascertainably fixed standard which the based authorized to were upon Mary Zentmayer’s past principal mode of invade to the maintenance living.” the in testator’s sister her usual manner although life, the use of the word Briefly, the shows that the evidence “comfort” in list of the allowable inva of whom testator neither sions makes this doubtful. somewhat See led, had as the ever married stated 234; McGinnes, Cir., Strite v. F.2d 330 Court, quiet, and mod- “a reserved D.C., Rothensies, F.Supp. Price v. (valued life,” living in est the same house However, stop testator did years preceding $26,000) for 26 the first sentence. death, testator’s sister had some money own, repeated and that In her there the second sentence he provision gave power about her habits and manner which his trustees living any principal “support, indicated likelihood to invade changing to a more her life welfare and comfort” of her extravagant However, question (using exactly words one. same sentence), probability that as he had first is not the used beyond any purpose principal amount “and for to necessary added other invade maintain her standard trustees shall deem to nec- essary living but whether desirable the benefit or use will be exercised trustees were said sister.” exists—not what the The otherwise need- they repetition catalogue likely do, what had the less poses to but principal might for which the to do. having for as invaded be accounted Bank, 335 v. Union Planters Henslee 595, to been inserted order show that the 290, L.Ed. 69 S.Ct. “any purpose” in- other clause was not Court, dealing similar with a somewhat recapitula- tended to taken as a mere beneficiary was case which the life recognized adding tion but would be old, mother, had who broader, discretionary, power a of in- than one-half been less already to that vasion mentioned. trust from the amount of the income estate, provisions independent not in conflict. had investments The two impliedly $100,000, was a woman The first sentence but unmis- worth takably dependents, imposes upon posi- a and without the trustees modest needs said, duty principal unlikeli “if occasion do not tive invade “We overlook age is, prove if it mother’s arises”—that should that a woman of the hood necessary her to maintain would abandon order the tes- customary frugality squander usual her tator’s sister her though may living But, for no other son’s wealth. —but only to of that then the extent needed to make chance extrava have been little hand, up gance part or con the deficit. On the other which would waste purpose” inter clause the trus- whole of the charitable sume the may, est, com tees in their discretion and What absolute that chance remained. obligation might regard so, experience draw as remote without do mon they upon fit, provid- generality of cases nonethe see expenditure precise pre beyond is for the realm less be single instance,” sister. “benefit use” diction words, In other trustees must also Mer was disallowed. See deduction keep to the extent Bank of Boston v. Commis Nat. chants sioner, L. maintained in the the testator’s sister 64 S.Ct. has accus- manner in which she been Ed. meaning support and maintenance they may take from live, and tomed to only. if, in their funds principal additional c expenditures judgment, aware The testator Thus, FIFTH or use. her benefit paragraph from his the income perfectly provides consistent would almost for the scheme and reasonable lim- if so maintenance sufficient in connection income as well as put it to find One would be'hard ited. management life bene- with the good for the reason ficiary’s in his estate. principal to an to invade the trustees amount, it was that unless unlimited argument petitioner’s stresses intended that of solici it to be evidence what seemed within reason be used part of the *4 on the for charities tude or desire. j that his sister need indicating an intention providing no ascertainable bequests diminished not be should their by amount that the gift We cannot standard which the to his sister.a anything can be calculated charities will receive agree to show is certainty, action of On with reasonable paramount in the charities. disallowing de- contrary, Commissioner shows is that what the of only duction was correct and the decision intended that not the testator nothing will be affirmed. should want sister and amenities usual necessities KALODNER, Judge (dissent- quiet simple mode a that, subject ing). trus the discretion satisfy any tees, agree should be able she with the statement desire, judgment of the entirely upon that “This case turns upon protect her relied whether it was this testator’s intention unreasonable, against and the needless, pro- to restrict the of invasion to expenditure. improvident or viding money needed to maintain his her accustomed liv- only above, limitation that As noted disagree ing”, but with its conclusion purposes puts upon the “other” the will did not an that the testator have such spent is intention. they deem such as the trustees Whether invasion will dis- or tes use” for the “benefit to be qualify remainder interest and, of the defini view tator’s poses of deduction the charitable de- very this Court tion of “benefit” which recently quoted pends upon (1) power”, the “terms b approval from the with (2) proper “the construction to be Pennsyl Supreme opinion Court of placed law of thereon the state Clinton, Company Winthrop v. vania in jurisdiction which would have to construe 435, 437, 472, 477, 46 A. defi Pa. —a question”.1 or trust in the will which included the statement nition declared,2 signification As Tax Court had the is “its manifest advantage gain of invasion been limited to “the works to the and com- welfare recipient” would seem that we —it Mary, my sister”, limiting justified fort would it in now not be would Commissioner, supra, argument no Bank v. doubt more based on a. The n were. charities that most of the than the fact physician whose an eminent were such as Commissioner, 160 1. Newton Trust Co. v. ophthal- in the field life work was (1 1947); accord F.2d Cir. naturally mology in. be interested would (3 McGinnes, 330 F.2d 234 Strite 1964). McGinnes, supra. b. Strite v. 2. 22 Tax Mem. 968. v. Union CCH c. in Henslee As the testators Bank, supra, Merchants Planters prior existing facts; (d) pertained to mode liv his will and have thereby ing (3) as conformed that technical rules or can- requirement. Es ons of construction should standard certainable resort- Commissioner, language T.C. to ambiguous tate of Wood assume, (1963). conflicting with also We or the deciding, been that had the out solely testator’s intent is reason * * limited to uncertain: deem Wright’s Estate, 380 Pa. or desirable page 108, 110 page A.2d 198 at sister,” my said the charitable (1955) it was said: deducti have been remainder would “In discovering order assist us in ble. intention, expressed However, case, in the instant these two in may place four corners we standing provisions, which alone ourselves compel opposite results, appear in one armchair and consider the circum- sentence—the second stances which was at the time. he surrounded ” Fifth Clause the will—and that makes * * * imperative impact consider the taxpayer suggests, *5 agree, The and I preceding Clause “putting position that oneself in the which declares the and “desire intent” Testator, it is in- inconceivable that he the testator on the score invasion of tended the words in his will to mean following in the terms:— more than that could “It is and desire intent only be used to assure that his sister parts my estate, and all as could prior continue mode liv- income, well shall be ing.” On the date of the execution of support, available for the mainte- testator was 87 old and nance, welfare and comfort of his sister was 80. Testator knew that said so “homebody” his sister was a applied and income thereto extravagances, ample and that she had if occasion set arises herein funds, along trust, with the income of the forth.” living. to maintain her standard of Reading light the “Fifth” clause in the instant we must look case reasonably these facts cannot said Pennsylvania apply prin- law ciples and testator intended to benefit pre- of construction which there sister, beyond maintaining her accustom- vail. living, mode manner which Pennsylvania applicable The rule was might dissipated have funds which were recently stated Mr. Chief Justice Bell comprise to charity. the remainder Burleigh page Estate, 373, 405 Pa. at apparent purpose It that the 376, 838, page (1961) A 175 .2d at : corpus, to invade which was only available (1) deemed “It when income was is now hornbook law “insufficient”, polestar protect was to and testa- testator’s intent is the exigencies prevail; (2) tor’s sister from must in- not immedi- that his ately gathered foreseeable at will was tent from a consid- the time the must (a) language executed.3 Such a uncei’tainty con- created “no eration of all the greater appreciably than tained in the four of his corners general uncertainty (b) hu- attends will and distribu- scheme This, Supreme man (c) affairs.” tion sur- the circumstances permissible. said, rounding has Trust him Ithaca made the time he circumstances, spelling tlie 3. Cf. Mc unusual out Lincoln Rochester Trust Co. v. emergencies 1954), Gowan, (2d which he had in mind. 217 F.2d 287 court allowed tlie charitable deduction. where the testator for certain Company States, in Merchants National Bank of Boston 154, 49 (1929). S.Ct. Commissioner, L.Ed. 647 S.Ct. 108, 88 (1943), L.Ed. the trustee was expressed, The view as to the corpus invested with the to invade scope, of invasion and its “comfort, supported by is in fact happiness my wife,” said and/or conclusion that the testator “intended specifically instructed “exercise nothing that his sister should want its wife, liberality my discretion with way the usual necessities and welfare, and consider her com- quiet simple amenities mode happiness prior to claims of fort living,” “subject and that dis- residuary beneficiaries under the trust.” trustees, cretion of the she would be able (Emphasis supplied). satisfy any desire, judgment relied In both of these cases the testator upon protect against her and the estate made it clear that his intention was to improvident unreasonable, needless or beneficiary, respects the life in all expenditures”. (Emphasis supplied). limitation, prior without to the charita- ble sufficiently safeguards remainder. These factors Where established * * * distinguish these cases from designed the instant protect a will “to case.4 against unreasonable, needless or improvident executing expenditures” in There remains this to said. permit intent to invasion capital provide majority, stating tenant a life after that “The “should want aware that the usual and amenities of a necessities income from his quiet living” simple it can- would mode of almost *6 lacking not be said an that there is ascer- sufficient for her so limit- maintenance ed”, put tainable standard which cal- would be hard “One certainty any good culated with find reason for the amount remainder charities receive. trustees to amount, to an unless it unlimited was upon by The two cases cited and relied prin- testator intended holding support majority its cipal might be used for within significantly inapposite are on their facts. reason that his sister need or Thus, in v. Union Planters Bank Henslee (Emphasis supplied). desire”. Co., and Trust 335 (1949), 69 S.Ct. major- 93 L.Ed. 259 was reference ity “dealing phrase in Fifth “and with a somewhat Clause cited my case”, mother was other similar monthly plus desirable deem receive a set allowance my estate, portion for the use of sister”. Read either pleasure, principal, the context [her] come entire surrounding execution, welfare”, will fur- comfort and object life-long e., to i. standard modest ther “first sister; accomplished the fact she the administration management my and this was 80 old the will was when estate executed; provide money own”, “had care of and she trust my is to take as she and “the was aware such manner mother in income from his would and trustees desire and executors fully to almost directed insufficient likewise authorized maintenance”, primarily manage my this for her it can be said Again, supplied). (Emphasis purpose.” scrivener Powell, (10 expressed was in United States 307 F.2d of tliese cases A similar view 1962). (cid:127) lily” merely “painted phrase, mooted design. testamentary Tax Court for the reverse the reason that remainder

charity so de- was created a charitable

clared as to allow

deduction. Ross, Houston, Tex., E. John F. James counsel,

Ensle, Houston, Tex., ap- pellant. Douglas Tindall, Jr., Wynn, C. S. C. Greenville, Miss., Hafter, Wynn, &Lake COMPANY,

ILLINOIS FARM SUPPLY Tindall, Greenville, Miss., counsel, Appellant, appellees. GREENVILLE GRAVEL COMPANY and TUTTLE, Judge, Before Chief Company, Appellees. Witco Judges. WISDOM, RIVES No. 20870. PER CURIAM: Appeals Court of States Fifth Circuit. daylight The collision occurred before Sept. 9, March at about A.M. on 3:00 Mississippi the Arkansas side just City Point. The River below Chicot high and the current swift. water was atmospheric There no interference visibility. dredge McCourt, Lee owned Company, anchor-

Greenville Gravel *7 navigable ed outside the main channel approximately 1,000 feet from the Arkan- 2,000 sas shore and feet west of about Mississippi Its anchors bank. two 1,000 to cables were feet attached about buoys upriver. on the There were no barges were tied to anchors. Three steel dredge. The starboard side of dredge barges lights on the were two miles. visible at a distance of least pushing three The Ulini was M/V barges pilot empty down the River. Its attempt pass between decided to dredge The cur- and the Arkansas shore. river, point from at that runs across rent current east. action west to westerly Illini wind caused get into the out of control and slide barges resulting dredge dam- ages $46,000. in excess of