(dissenting) .
I cannot join with the majority in their disposition of this appeal. I would affirm the result below and would follow, as did the district court, D.C.W.D.N.Y. 1958, 166 F.Supp. 629, the lead of the Third Circuit in In re Reilly’s Estate, 3 Cir., 1957, 239 F.2d 797.
It is, and was stated in one of the exhibits attached to and made part of the parties’ stipulation to be, the accounting and actuarial practice of the life insurance industry to do exactly what the companies here did. Upon the death of Mr. Meyer, under the settlement options he chose, each of the two companies set aside two distinct funds — each company estimating the amounts needed in each fund by reference to Mrs. Meyer’s life expectancy as set forth in the applicable Mortality Table. In each case, one of these funds, the first one, was to provide payments certain for twenty years. If Mrs. Meyer died during this twenty year period the payments certain were to be made to another beneficiary. The status of these two first funds is not involved in this appeal. It is agreed they do not qualify for the estate tax marital deduction. In each case the other fund, the second one, was set aside to finance payments payable only to Mrs. Meyer for as long as she might live after the expiration of the twenty years and after the exhaustion of the first fund. These payments were not to begin until the twenty-year period had elapsed. There was no contingent beneficiary. If Mrs. Meyer died during the twenty year period the insurance companies would each pocket the full amount of this second fund. If she died after she began to draw against the fund, but before it had been exhausted, each company would pocket the unexhausted sums. On the other hand, if Mrs. Meyer lived longer than her life expectancy and thereby exhausted the second fund the insurance companies were obligated to continue to pay her out of company money the agreed payments until her death.
It seems clear that the money needed to fund the payments for twenty years certain, and that needed to fund the continuing life long payments, were necessarily required to be kept separate and constituted separate entities. They were for different purposes, purposes contemplated by Mr. Meyer when he chose the *88particular settlement option that he chose, and their separation was required in order that neither Mr. Meyer nor the companies be disadvantaged in the execution of the settlement plan. Therefore, of what possible materiality can it be that this segregation of funds was not spelled out in the settlement contract? Or that Mr. Meyer didn’t specifically request a division ?
To be sure, they were both settled for the primary purpose of providing installment payments to the surviving spouse during her lifetime. But there the similarity ceases and the dissimilarity is so marked that I think it error to consider that in each .case these two funds were but one property. If the interest of the surviving spouse in the property constituting the first fund should happen to terminate or fail by her death the balances remaining in that fund could pass without consideration to the contingent beneficiary. But the second fund was not so settled. While the interest of the surviving spouse in the property constituting the second fund might also terminate or fail by her early death those balances would pass for “an adequate and full consideration in money or money’s worth” to the insurance companies with whom the settlor had bargained on the chance that his widow would outlive her life expectancy and receive excess payments.
Hence I would hold that the portions of the proceeds of Mr. Meyer’s insurance policies that by contract with him were set aside to fund payments to Mrs. Meyer after the twenty-year period had elapsed qualified for the allowance of the estate tax marital deduction. I believe this result is consistent with the purpose of Section 812(e) (1) — to make the tax treatment of married persons in community property and non-community property states more nearly uniform — and surely the arrangement with which we are dealing does not provide an avenue for abuse of the marital deduction provision. Consequently, since “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy,” United States v. Boisdore’s Heirs, 1849, 8 How. 118, 122, 12 L.Ed. 1009; Mastro Plastics Corp. v. National Labor Relations Board, 1956, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309; National Labor Relations Board v. Lion Oil Co., 1957, 352 U.S. 282, 288, 77 S.Ct. 330, 1 L.Ed.2d 331, I would affirm the court below.
I interpret the difference between my colleagues and me to turn on the fact that they are unwilling to consider as done what actually was done. They believe that, because there was no specific contract authorizing segregation, it is improper for estate tax purposes to divide the insurance proceeds into two funds. I am sure that if they agreed with me that two funds are permissible, they also would agree that the estate of Mr. Meyer would be entitled to the benefit of the marital deduction to the extent of the funds before us on this appeal. The specific wording of the Code’s applicable provisions so provide. See 1954 I.R.C. § 2056(b) (1) (A) and (B), 26 U.S.C.A. § 2056(b) (1) (A, B); 1939 I.R.C. § 812(e) (1) (B) (i) and (ii), 26 U.S.C.A. § 812(e) (1) (B) (i, ii). See also Reg. 105, § 81.47a(b) (2) and (3). The benefits of the marital deduction are deniable to a terminable interest only where a remainder interest in the entire property passes to some person other than the surviving spouse for less than adequate consideration, and this othér person may thereupon possess or enjoy the remainder interest after the termination of the wife’s present interest. I think we would all agree that unless there are additional rights created in a property entity for the benefit of third' parties the interests passing to the surviving wife in that property entity are entitled to and should be accorded the benefit of the marital deduction.