Varick v. Commissioner

Disney, J.,

concurring: I concur in tibe result, but, as to the portion of the charitable bequests which might have been claimed by the sister, it seems to me that we should place the matter upon the simple ground that the judgment of the probate court distributing the charitable bequests in accordance with the will, being unappealed from and without collusion, was determinative that the property passed by the bequests under the will. Unlike the decedent’s husband, she filed nothing by way of disclaimer or waiver; therefore the judgment of the court as to her could not have been based upon waiver or disclaimer, and was, in distributing the property as bequests, necessarily based upon the will. That the judgment was in a nonadversary proceeding is not important. Charles S. McVeigh, 3 T. C. 1246. Mere failure to appeal is obviously no reason to think there was collusion.