dissenting: When viewed as of the date of the decedent’s death, the widow had the full right to acquire from the trust for her separate use and ownership the property in question. In fact, within a short time she did take the property and it became the corpus of a new and separate trust set up by her. The mere possiblity that she would be deprived of her right to withdraw the property should she be pronounced legally incompetent does not seem to me a valid reason for denying the marital deduction. Such an unfortunate possibility always exists and would operate effectively to extinguish the right of any sürviving spouse to draw down property given with the power to consume or appoint.
The majority apparently recognizes that the right of the surviving spouse alone to exercise the power to consume or appoint “in all events” does not mean that the deduction is lost where the will is silent on the mere possibility of the beneficiary’s legal incompetence. Thus, it is recognized that the requirement “in all events” has some limitations and, in my opinion, it must be given a practical interpretation to carry out the broad purpose of Congress in equalizing the impact of Federal estate taxes on decedents in those jurisdictions where local law does not adopt the advantages of the community property States.
I would allow the deduction.