SUPPLEMENTAL OPINION.
Kern, Judge:This case (in which our original Findings of Fact and Opinion are reported at 27 T.C. 107) is again before us pursuant to the mandate of the United States Court of Appeals for the Sixth Circuit to which was attached the following order (as amended) :
The above cause coming on to be heard upon the record, the briefs of the parties, and the arguments of counsel in open court, and it appearing that petitioning executor claimed a marital deduction for a widow’s allowance under Section 812(e) of the Internal Revenue Code of 1939, and that the Tax Court denied such claim on the ground that the widow’s allowance did not constitute property passing from the decedent, as defined in Section 812(e) (3) ; and it further appearing that the grounds upon which the Tax Court decided the case have been abandoned by the Treasury Department and by present counsel for the Commissioner on this appeal; and it appearing that the single and controlling issue, now presented to the court, is whether the widow’s allowance in question was a “terminable interest” within the meaning of Section 812(e) (1) (B) of the Internal Revenue Code of 1939, as amended; and it appearing that respondent contends that it is a terminable interest because it does not vest until after a petition has been filed for such allowance, and, further, that the allowance of the deduction depends on whether the widow received an indefeasible interest in the estate of her husband when he died; and it appearing that petitioner contends that such allowance is an indefeasible, vested right under the law of Michigan, relying upon King v. Wiseman, 147 F. Supp. 156; and it further appearing that petitioner contends that such interest qualifies for the marital deduction without regard to whether the allowance vests or not, since Congress did not intend the terminable interest rule to be applicable to a widow’s allowance; and it further appearing that the Tax Court has not passed upon these contentions of petitioner; and the court being duly advised,
Now, Therefore, It Is Ordered, Adjudged, and Decreed That the case be and is hereby remanded to the Tax Court for its further consideration and for its decisions on the issue whether such allowance constituted a terminable interest within the meaning of Section 812(e) (1) (B) of the Internal Revenue Code of 1939, as amended, and whether the terminable interest rule is applicable to a widow’s allowance, under the statute.
It is apparent that respondent has abandoned the position originally taken by him in this proceeding with regard to the question of whether a widow’s allowance is an interest in property passing from the decedent within the meaning of section 812(e) (3), I.R.C. 1939 (see 27 T.C. 107, 113), and has now reverted to the position stated by him in Revenue Ruling 83, 1953-1 C.B. 395, which reads as follows:
Advice is requested whether amounts allowed and paid pursuant to State law for the support of a surviving spouse during the period of settlement of the estate of the deceased spouse qualifies as a marital deduction for estate tax purposes under section 812(e) (1) (A) of the Internal Revenue Code.
Under the general rule of subparagraph (A) of section 812(e)(1) of the Code, the marital deduction will be allowed with respect to any interest in property included in the gross estate which passes from a decedent to his surviving spouse as absolute owner. In order to qualify under this subpara-graph, any right of a widow to an allowance in her husband’s estate must be a vested right of property which is not terminated by her death or other contingency. Therefore, if a widow’s allowance for the full period of settlement of the estate is such that the allowance, or any unpaid balance thereof, will survive as an asset of her estate in ease she dies at any time following the decedent’s death, the interest thus taken by the widow would clearly constitute a deductible interest under section 812(e) (1) (A) of the Code. Whether any interest thus taken by a widow satisfies the statutory requirements in this respect is to be determined in the light of the applicable provisions of the State statutes, as interpreted by the local courts.
There are eases, however, where it appears that the provisions of State statutes providing for allowances for support during the period of settlement of an estate do not confer upon the surviving spouse of a decedent any vested indefeasible right of property which would constitute a deductible interest under section 812(e) of the Code. In many States local courts have held that such allowances, or any rights thereto, terminate ipso facto upon remarriage and that death also terminates any rights to subsequent allowances. Under such circumstances, the interests passing to the surviving spouses of decedents in the forms of allowances, made for their support, pursuant to local law, amount to no more than annuities payable out of the assets of the estates during the periods of settlement or until prior death or remarriage of the surviving spouses and, as such, constitute terminable interests within the meaning of section 812(e) (1),(B) oft he Code, no portion of the values of which qualify for the marital deduction.
In view of the foregoing, it is held that the interest in an estate which passes to a surviving spouse pursuant to State law in the form of an allowance for support during the period of settlement of the deceased spouse’s estate must constitute a vested right of property such as will, in the event of her death as of any moment or time following the decedent’s death, survive as an asset of her estate, in order to qualify under section 812(e) (1) (A) of the Internal Revenue Code for the estate tax marital deduction.
The facts in the instant case are not in dispute. They are fully set out in 27 T.C. 108, 109. As stated therein, decedent died on May 24, 1952. By will he devised his residuary estate to a trust, the corpus of which was distributable to his children upon the death of his widow. On October 29, 1952, the appropriate State court of Michigan entered an order upon the petition of the widow directing that “an allowance in the sum of $10,000.00 per year to be paid at the rate of $833.33 per month be and the same is hereby granted out of the estate of said deceased for the support and maintenance of the widow for one year from the date of the death of said deceased.” On August 3, 1953, the executor of decedent’s estate paid to the widow a lump sum of $10,000 in satisfaction of the order of the State court. The widow died in 1954.
Respondent on brief states that he “accepts the view that the critical consideration upon which the right to the deduction [of the widow’s allowance] depends is whether the widow’s interest was a terminable one within the meaning of Section 812(e) (1) (B)” of the Internal Revenue Code of 1939,1 and further states the question to be decided as “whether a widow’s allowance in the State of Michigan constituted a terminable interest under Section 812(e) (1) (B) of the Internal Revenue Code of 1939, as amended, and whether the terminable interest rule is applicable to a widow’s allowance, under the statute.” As we understand his present argument, it is to the effect: (1) That since a petition by the widow is a prerequisite to the granting of a widow’s allowance since the widow may fail or refuse to make such a petition and since an order of the State court is necessary to fix the allowance in final form, there may be a “failure of an event or contingency to occur,” upon which the “interest passing to the surviving spouse [the widow’s allowance] will * * * fail,” and (2) since the death of the widow after the entry of an order granting a widow’s allowance would abate such allowance for the period after her death, and the remarriage of the widow would terminate her right to such allowance for the period following remarriage, there may be “the occurrence of an event or contingency,” upon which the “interest passing to the surviving spouse [the widow’s allowance] will terminate.”
In determining whether the widow’s allowance here involved constituted a “terminable interest” within the meaning of section 812(e) (1) (B) we must look at the facts and the rights of the parties as they existed at the time of decedent’s death. Estate of Edward A. Gunha, 30 T.C. 812. See also Estate of Wallace S. Howell, 28 T.C. 1193, 1195; Shedd's Estate v. Commissioner, 237 F. 2d 345, affirming 23 T.C. 41.
As of the decedent’s death his widow was entitled to a widow’s allowance for 1 year and her right to this allowance was not lost by reason of her subsequent death or remarriage. Bacon v. Perkins, 100 Mich. 183, 58 N.W. 835; Isabell v. Black, 259 Mich. 100, 242 N.W. 853. Of course the widow (or her representative) had to ask for the enforcement of this right or interest by petition to the appropriate Probate Court, and the Probate Court by its order would render the right enforcible. However, we are unable to agree with respondent that the necessity of invoking the proper legal procedures for the enforcement of a right is a contingency to the existence of the right (i.e., a “failure of an event or contingency to occur” upon which the “interest passing to the surviving spouse will * * * fail”) within the meaning of the statute. The invocation of the proper legal procedure is required with regard to widow’s allowances in most jurisdictions, and if this were a relevant factor in considering the applicability of section 812(e) (1) (B) it would almost universally preclude the allowance as a marital deduction of “amounts expended in accordance with the local law for support of the surviving spouse of the decedent.” It was not considered a relevant factor by the respondent in Revenue Ruling 83, 1953-1 C.B. 395, quoted above. The clear inference from the congressional reports referred to in our original opinion (see 1950-2 C.B. 478, 576) is that Congress assumed that in many cases at least a widow’s allowance would be allowable as a marital deduction. This congressional assumption (even though erroneous under our interpretation of section 812(e) (3); see 27 T.C. 107) negatives any congressional intent that the necessity for the widow to file a petition asking for the allowance or the discretion and power of the local probate judge with regard to fixing and modifying the amount of such allowance should be relevant factors to be considered under section 812 (e)(1)(B). This view is implicit in our decision in Estate of Gertrude P. Barrett, 22 T.C. 606. In that case decedent’s husband contended that decedent’s will was invalid and asserted a claim to a one-third interest in decedent’s personal property as provided by State statute. A compromise was effected whereby the husband agreed to renounce his contention and settle his claim for $10,250 paid to him by the executor with the approval of the Probate Court. It was held that this amount was a marital deduction under the provisions of section 812 (e). In that case it is obvious that the enforcement of the husband’s rights required the invocation of proper legal procedures and the extent of the rights (i.e., the dollar amount of his interest) depended upon the action of officers of the Probate Court subject to the court’s approval. Yet we allowed the amount paid to the husband as a marital deduction. The instant case is a stronger one for the taxpayer.
The difficult question is whether the widow’s right to a support allowance for 1 year, existing under the law of Michigan as of the decedent’s death was subject as of that time to be terminated by her death or remarriage within the year so that the occurrence of either event must be considered “the occurrence of an event or contingency” upon which the “interest [represented by the widow’s allowance] will terminate.”
In Estate of Edward A. Cunha, supra, a case involving the law of California, the answer to this question was comparatively easy since in that case the award was for monthly sums and we were able to point out that petitioner in that case conceded that the effect of In re Blair’s Estate, 42 Cal. 2d 728, 269 P. 2d 612, was that a widow’s allowance in that State terminates or abates upon her death or remarriage. See also Estate of Hamilton, 66 Cal. 576, 6 Pac. 493.
However, in the instant case the reasoning of the Michigan courts in the two Michigan cases above cited and in others would indicate that the law of Michigan on this point is not like the law of California. See also McAvinchey, Michigan Probate Practice sec. 120.
The general rule on this question is stated by 3 Schouler, Wills, Executors and Administrators (6th ed.) sec. 2655, as follows:
Usually where, at the death of a widow, portions of an amount allowed to her as a widow’s allowance remain unpaid, such amounts may be recovered by her representative [citing In re Rice’s Estate, 146 Iowa 48, 124 N.W. 792], And effect of her death, after a decree unappealed from has established her right, absolutely and conclusively, to an allowance, appears to cause this right of property to pass to her personal representatives [citing Drew v. Gordon, 13 Allen (Mass.) 120].
The difficulty of formulating a general rule applicable to all jurisdictions is indicated by a consideration of 144 A.L.R. 264 and the cases cited and discussed in the annotation, at 270-286. However, we are satisfied that there is no such general rule contra to the contention of petitioner as to the law of Michigan on this subject as to justify us in holding that the burden of proving the law of Michigan as an exception to a general rule is on petitioner under the doctrine of Helvering v. Fitch, 809 U.S. 149. See Helvering v. Stuart, 817 U.S. 154. We have before us all of the precedents of that State which counsel have presented on brief and our own research has found available. It must be our responsibility, without relying on any rule of burden of proof, to determine what the law of Michigan is on this question.
We limit the question, of course, to the precise facts here involved. It should be pointed out that in this case, unlike the Cunha case, the award was in one lump sum covering the period of a year (“an allowance in the sum of $10,000 per year”), even though the order permitted the award “to be paid at the rate of $833.33 per month.” Thus by the terms of the order the allowance “granted * * * for the support and maintenance of the widow for one year from the date of the death of * * * deceased” was the one sum of $10,000, and not an allowance of monthly payments. As to the term for which the award was granted, it was for 1 year after the death of decedent and as to such a term the widow’s right to an allowance was “an absolute vested right.” See Bacon v. Perkins, supra.
It is our opinion that under the law of Michigan a widow’s allowance granted by the Michigan Probate Court for 1 year in a lump sum does not terminate or abate upon the death or remarriage of the widow prior to its payment.
We'conclude that under the facts of the instant case (and limiting strictly our decision to these facts) the widow’s allowance here in question did not constitute a terminable interest within the meaning of section 812(e)(1)(B) of the Internal Revenue Code of 1939, as amended.
We reach this conclusion in conformity with the mandate of the Court of Appeals, above quoted, and not because we have in any way receded from the views expressed in our original opinion herein, to the effect that the widow’s allowance here involved was not an interest in property passing from the decedent as defined in section 812(e) (3).
The Court of Appeals by its order which is quoted above calls for our further consideration and decision “on the issue whether such allowance constituted a terminable interest within the meaning of Section 812(e)(1)(B) of the Internal Revenue Code of 1939, as amended, and whether the terminable interest rule is applicable to a widow’s allowance, under the statute.” In deciding the first, question posed by the Court of Appeals (“whether such allowance constituted a terminable interest within the meaning of Section 812(e) (1) (B)”), it is obvious that an assumption must be made that “the terminable interest rule is applicable to a widow’s allowance.” We have considered and decided that even though “the terminable interest rule is applicable to a widow’s allowance,” the widow’s allowance here in question under the peculiar facts of this case did not constitute a terminable interest within the meaning of “the terminable interest rule.” Having thus decided the first question stated by the Court of Appeals in a way which will dispose of the case in petitioner’s favor, even on an assumption with regard to the second question stated which is contrary to petitioner’s position any comments by us on the second question may well be characterized as dicta. However, in conformity with the order of the Court of Appeals, we express the opinion that “the terminable interest rule is applicable to a widow’s allowance.”
Petitioner’s contention on this question is that the two conditions to the application of “the terminable interest rule” (section 812(e) (1) (B)), which are set out in subsections (i) and (ii) of section 812(e)(1)(B), are not fulfilled in cases involving a widow’s allowance since upon the termination of such an allowance the interest therein does not pass to and may not be possessed or enjoyed by any person other than the surviving spouse directly but the interest in such property will revert to the decedent’s estate and pass through that estate (subject to tax) to such other person or persons.
Petitioner’s argument on this question is ingenious, but it is not supported by the language of the statute nor by any legislative history. In theory it is incompatible with administrative interpretation, Rev. Rul. 56-26, 1956-1 C.B. 417. In our opinion it is without merit.
Reviewed by the Court.
Decision will be entered of no deficiency.
SEC. 812. NET ESTATE.
Eor tlie purpose of the tax the value of the net estate shall be determined, in the case of a citizen or resident of the United States by deducting from the value of the gross estate—
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(e) Bequests, Etc., to Surviving Spouse. — ■
(1) Allowance op marital deduction.—
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(B) Life Estate or Other Terminable Interest. — Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest—
(i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse) ; and
(ii) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse;
and no deduction shall be allowed with respect to such interest (even if such deduction is not disallowed under clauses (i) and (ii))—