dissenting: I am unable to join in the majority opinion herein for the following reasons: The trust instrument was clearly worded so as to create a support fund for the settlor’s wife; the majority opinion uses facts occurring after the creation of the trust instrument to interpret the trust instrument; the majority opinion fails to give needed consideration to a fact existing at the time of the creation of the trust instrument; and the majority opinion is so clearly in conflict with J. Edward Johnston, 41 B. T. A. 550, as to amount to a reversal thereof.
From the opinion we can only gather that at the creation of this trust, the income of which, “together with her other income,” was devoted to the support of the settlor’s wife, said wife actually had no other income. This fact draws no comment in the majority opinion. Up to the time of the creation of the trust the settlor had himself supported his wife from his own income. The. trust instrument was perfectly designed to remove this burden from the decedent settlor. The opinion states that the instrument did not actually so function because the stocks which constituted the corpus paid no dividends and the settlor “in every way supported his wife at all times material hereto up to his death.” This latter fact is emphasized by repetition in the opinion and seems to have influenced strongly the majority in their conclusions.
Prior to the decision of Helvering v. Stuart, 317 U. S. 154, and the subsequent amendment of section 167 of the Internal Revenue Code by the addition of paragraph (c) thereto, the courts had frequently considered the amount of the trust income actually devoted to relieving the settlor of his legal obligations to support the beneficiary after the creation of the trust instrument, when the trust was being interpreted in the light of section 167. With the adoption of the amendment to section 167, this method of interpretation became recognized by statute.
However, the trust at bar is not being considered under section 167. We are here construing a trust under section 811 (c) and this section does not have any clause similar to section 167 (c). Without the benefit of this latter clause, it would seem to be well established that the character and purpose of a trust are to be determined by the trust instrument itself in the light of those facts only which existed at the time of the creation of the trust. See Morrissey v. Commissioner, 296 U. S. 344, 361; also Helvering v. Stuart, supra. In Helvering v. Coleman-Gilbert Associates, 296 U. S. 369, the Court said:
The parties are not at liberty to say that their purpose was other or narrower than that which they formally set forth in the instrument under which their activities were conducted.
Our final objection to the majority opinion is that it in effect reverses J. Edward Johnston, 41 B. T. A. 550. In that case five trusts created by the taxpayer were for interpretation before the Court. Concerning the fifth trust, the Court says:
In the trust for petitioner’s wife, Mathilde, the trustee was directed to pay the net income to her “for and during her life, but if in the opinion of the Trustee said Income be insufficient for her maintenance and support in the manner in which she has been accustomed to living, then said Trustee is hereby authorized and directed to pay over to her such part or parts of the corpus as it in the exercise of a liberal discretion towards her deems necessary for such purposes.” The limitation on the right of the trustee to invade corpus for the wife, we think, effectively restricts her use of the income to support and maintenance. Accordingly, the rule of Douglas v. Willcuts, supra, applies and the income so paid to her is taxable to petitioner, settlor.
Tbe only material factual difference between tbe case at bar and tbe facts concerning tbe fifth trust in tbq. Johnston case is that in tbe Johnston case tbe court was considering income tax and in that case tbe wife-beneficiary bad tbe power of revocation. We do not consider either of these distinctions in fact material to the legal question involved, and we feel that,' if this Court is to recognize legal precedents, the majority opinion herein is in error.
Opper, J., agrees with this dissent.