(concurring in part and modifying in part).
The language of the reciprocal Hirschmann will executed in Germany was exceedingly broad. Each spouse left to the other “the lifelong usufruct of the entire estate left by, either of us.” For as long as each should live, he or she was to “retain the unrestricted possession and enjoyment of the entire property of both of us and shall in no way be restricted in disposing inter vivos also of its substance, so that our children and remaindermen will have to be satisfied with what will be left at the death of the survivor of either of us spouses.”
But for the construction placed upon this will by the Surrogate’s Court of New York County, 124 N.Y.S.2d 801 (by order dated July 3, 1953), I would agree with my colleagues in all respects. However, that court in a proceeding to construe the meaning of this provision held that it “creates legal relationships between decedent’s widow and his two sons known as that of a legal life estate, with power to invade the principal in the widow and remainder interests in the two sons; ”. Under New York law the right to invade is subject to the rule of reasonable need and good faith. It does not bestow absolute title to the assets. The federal tax consequences should be based upon the legal rights as construed by the New York Court. I would, therefore, hold that Recha was liable during the years in question as a fiduciary rather than in an individual capacity. Otto cannot recover because he paid taxes on capital gains listed on his fiduciary returns. He, in effect, was merely doing what Recha was required to do.