(concurring).
I concur in the opinion of the eourt — - but without either enthusiasm or illusion. The plain trend of the federal estate tax statute is toward elimination of exceptions such as this. 26 U.S.C. § 2036 (1964); 26 U.S.C. § 2040 (1964); United States v. Jacobs, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763 (1939); Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940); Commissioner v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288 (1949).
In spite of this trend, however, I find it impossible to agree with the govemment’3 argument that the statute as it is currently written contains language which serves to bring the instant apparently never considered fact situation under the tax umbrella.
In this regard I am persuaded by the logic and the authorities contained in Judge Phillips' opinion — particularly the quote from Mr. Justice Black from the Jacobs case:
“Until the death of her co-tenant, the wife could have severed the joint tenancy and thus have escaped the application of the estate tax of which she complains.” United States v. Jacobs, 306 U.S. 363, 371, 59 S.Ct. 551, 555 (1939).
Although this sentence is clearly dictum, it is surely well informed dictum. And if applicable to the fact situation of Jacobs, it seems to apply a fortiorari to our present case.
Obviously, if the present holding of this court receives United States Supreme Court approval, there are only two possible results. Either Congress will act promptly to plug the loophole, or many a well informed taxpayer (who is confident of the security of his marriage!) will put title to the marital home in his wife's name. In some situations this may prove to be an unfortunate test of one partner’s judgment of the security of the marriage. And if Congress fails to act, the most socially desirable form of possession of a marital home (joint ownership, with rights of survivorship) will be put at an unfortunate tax disadvantage.