dissenting: I find myself unable to concur in the reasoning of the Court in the disposition of this case. The conclusion is based on the factual and legal premise that the decedent did, at all times, from and after the grant to trust, have and retain an interest in the trust corpus until that interest was terminated by his death. With that premise, I am in hearty accord. It is held, however, that the interest was reserved or remained in the decedent by operation of law, and not by the expressed wording of the trust instrument, and this, because the decedent, instead of describing the interest retained “by metes and bounds,” so to speak, utilized by reference the Pennsylvania law of descent and distribution. I am unable to see how the reservation was any the less a reservation by the expressed terms of the trust instrument than it would have been if the decedent, without any mention of the Pennsylvania statute, had described the interest covered, and not only that, but had made it subject to all of the conditions and contingencies which, conceivably, could have intervened, as suggested in the opinion of this Court. Except by the expressed terms of the trust instrument, there could not have been a reservation of the particular interest which it is conceded the decedent did retain. There is no suggestion whatever of any manner in which the law could possibly have operated so as to retain for the grantor the interest in question had the trust instrument omitted the provisions to that effect. Accordingly, the inescapable conclusion to me is that by the expressed terms of the trust instrument, and not by operation of law, the decedent retained an interest, contingent though it was, in one-third of the trust corpus, which interest did not pass from him until and by reason of his death and does not fall within the exclusion provided in section 811 (c) (1) (C) of the Code.
The views above expressed are directed only to the matters dealt with in the Court’s opinion, and do not encompass any consideration of the possible effect of the general power of appointment granted by the decedent to his wife, which power she subsequently relinquished, nor to the effect that should be given to the fact that, to some extent, the trust corpus was in effect supplied by his wife.
Disney and Harron, JJ., agree with this dissent.