dissenting: The issue in this case is whether or not there was such a bequest or devise to the National Girl Scouts, Inc., a charitable organization, as to entitle this estate to a deduction. There was no absolute bequest or devise under the will. The bequest would be defeated to the extent that the corpus might have to be invaded to properly care for the husband of the decedent in case of illness, accident, or misfortune. The devise of the property known as Rockwood Manor was subject to the condition that the National Girl Scouts, Inc., would continue to use it for the specified purposes. One-half of the proceeds from the sale of certain property, after the death of the husband, was to go to the National Girl Scouts, Inc., but only for the development and improvement of Rockwood Manor and only upon condition that the National Girl Scouts, Inc., would continue to operate Rockwood Manor for the prescribed purposes. The remaining one-half of the proceeds of the sales was to go to the National Girl Scouts, Inc., 20 years after the death of the husband if they were still in possession of Rockwood Manor at that time.
The prevailing opinion starts off on a false foundation by assuming that the National Girl Scouts, Inc., will fully qualify and take the entire residue under the will by meeting all of these conditions. These are the very matters at issue in the case and should be decided upon proof or lack of proof and not upon assumption. The National Girl Scouts, Inc., was not in existence 25 years before the death of this decedent, and we have no right to assume, as a basis for decision for the petitioner, that it will be in existence 26 years after the death of the decedent and that it will remain in possession of Rockwood Manor and use it as required by this will in order to fully qualify and take all of the residuary estate. If the proof is difficult, or even impossible, the petitioner, upon whom the burden rests, is left with an unenforceable claim. Burnet v. Houston, 283 U. S. 223. I think the proof is inadequate to show that the Commissioner erred;
SterNHAgeN and Harron agree with this dissent.