(concurring) .
I concur, but with sympathetic reluctance. It seems to me that it is regrettable when the marital deduction provisions of the Revenue Act of 1948, which were created and intended to promote, and not to defeat, desirable uniformity in the several states in estate tax consequences and to avoid the peculiarities of local law, House Report No. 1274, 80th Congress, 2d Sess., 1948-1 C.B. 241, 242, 261; Senate Report No. 1013, 80th Congress, 2d Sess., 1948-1 C.B. 285, 288, now come full circle, so far as the surviving spouse’s maintenance allowance is concerned, and are again made entirely dependent on the vagaries of state law. The result is peculiarly startling in this case where the property in question can go only to the widow via the allowance or to the charity via the residue and to no one else; each of these beneficiaries, supposedly, is favored under the estate tax law and yet tax is incurred because the allowance runs afoul of the technicalities of terminable interests. Thus the Internal Revenue Service successfully defeats the avowed purpose of the 1948 Act.
Unfortunately, until corrective legislation of the kind proposed by House Report No. 1337, 83rd Congress, 2d Sess., 1954, pp. 91-2, by House Report No. 818, 86th Congress, 1st Sess., 1959, p. 2, and by American Bar Association, Section of Taxation, Program and Committee Reports to be Presented at the Twentieth Annual Meeting, pp. 55-57 (1959), is enacted, we are bound to have, and I suppose we must be content with, results such as the one we reach in the instant case which necessarily stands in vivid contrast with Molner and other cases arriving at a tax free result on the theory that the particular local law creates a vested interest. Perhaps Congress will sometime achieve the uniformity, which it desired in 1948, by again granting a deduction for a properly limited spouse’s allowance, as under the former § 812 (b) (5) of the 1939 Code, 26 U.S.C.A. § 812(b) (5), or, on the other hand, by eliminating completely a deduction for the allowance irrespective, in either case, of local legal theory. See case note, 73 Harvard L.Rev. 1624 (1960). Unless and until that comes about, however, the conclusion of non-deductibility here seems inescapable.