(dissenting) .
Today we affirm a District Court decision denying the estate of the late Mrs. Kirstine Bagley a refund of federal estate taxes of $42,711.77, representing the tax on $300,462.36 of property which passed under her husband’s will, not to Mrs. Bagley’s beneficiaries (from whose inheritance the tax will be deducted), but to the heirs of her husband. The property in question descended to Mr. Bagley’s heirs without any opportunity on Mrs. Bagley’s part to alter the disposition, and apparently without any knowledge on her part that she had the power to do so. This inequitable result springs entirely from a finding, based on a clause in Mr. Bagley’s will, that Mrs. Baley survived her husband for a “theoretical instant.” I respectfully dissent.
According to the Government’s brief, the Commissioner of Internal Revenue has allowed Mr. Bagley’s estate a marital deduction for federal estate tax purposes on the property involved in the instant case. Mrs. Bagley’s estate, the appellant here, was not a party to that determination; the question of its correctness is not before this Court. For my part, the Commissioner’s action should not control the result here, to the prejudice of the substantial rights of Mrs. Bagley’s heirs.
The federal estate tax is a tax on the exercise of the privilege of directing the course of property at one’s death. Rogers’ Estate v. Helvering, 320 U.S. 410, 413, 64 S.Ct. 172, 174, 88 L.Ed. 134, (1943); see Estate of Whipple v. United States, 6 Cir., 1969, 419 F.2d 494, 496; Jandorf’s Estate v. Commissioner of Internal Revenue, 2 Cir., 1948, 171 F.2d 464, 465; Commissioner of Internal Revenue v. Clise, 9 Cir., 1941, 122 F.2d 998, 1001, cert. denied, 315 U.S. 821, 62 S.Ct. 914, 86 L.Ed. 1218. The exercise of a power of appointment in one’s will is one means by which the course of property may be directed at death. Subject to certain exceptions, the value of property thus transferred is now and has been for many years included in the value of the gross estate of the decedent for federal estate tax purposes. See Int. Rev.Code of 1954, § 2041; 2 J. Mertens, The Law of Federal Gift and Estate Taxation, §§ 19.01.-06 (1959). Prior to 1942, unexecuted powers of appointment were treated differently: the value of property subject to a power of appointment vested in a decedent who failed to exercise it was not included in the value of his gross estate for federal estate tax purposes. See Helvering v. Safe Deposit & Trust Co., 316 U.S. 56, 62 S.Ct. 925, 86 L.Ed. 1266 (1942). In the Revenue Act of 1942, however, Congress amended the pertinent section of the Internal Revenue Code. Section 2041(a) (2) of the Internal Revenue Code of 1954 now provides that the value of a decedent’s gross estate shall include “the value of all property * * * to the extent of any property with respect to which the decedent has at the time of his death a general power of appointment created after October 21, 1942. * * *”
The rationale for including in the gross estate of a decedent property subject to unexercised powers of appointment vested in him is apparent: one who has a power of appointment and has a reasonable opportunity to exercise it, controls the disposition of the property whether he exercises the power or not. See Minority Report, H.R.Rep. No. 327 (Part 2), 82nd Cong., 1st Sess., p. 2, *1271quoted in Mertens, supra, § 19.05 at 497; cf. Chase Nat. Bank v. United States, 278 U.S. 327, 334-35, 49 S.Ct. 126, 127, 73 L.Ed. 405 (1929) (value of insurance policies taxable to decedent who retained right to change beneficiary). A decedent who has knowingly permitted such a power to lapse at his death has exercised the privilege of directing the course of the property subject to it, as surely as if he had taken the formal steps necessary to exercise the power itself. Cf. Jenkins v. United States, 5 Cir., 1970, 428 F.2d 538, cert. denied, 400 U.S. 829, 91 S.Ct. 59, 27 L.Ed.2d 59; Miller v. United States, 3 Cir., 1968, 387 F.2d 866.
The situation is entirely different, however, where the donee of a power of appointment does not know that it has been conferred, or after he learns of it has no opportunity to exercise it. In cases of this kind, where, in default of any action by the donee, the property passes to beneficiaries designated by the donor in the instrument creating the power of appointment, there is obviously no basis for saying that those beneficiaries have taken because the donee of the power so willed. Cf. Rogers’ Estate v. Helvering, 320 U.S. 410, 414, 64 S.Ct. 172, 174, 88 L.Ed 134 (1943). To tax the donee’s estate on the value of the property which descended to others without the donee’s participation, active or passive, would be not only inconsistent with the rationale of federal estate taxation, but unjust and a deprivation of property without due process of law.
The Jenkins case on which the majority relies was a case of the former type. Ada Lee Jenkins and her sister Martha O. Jenkins, residents of Georgia, together executed substantially identical wills. Ada’s will conferred on Martha a general power of appointment over certain of Ada’s property. Martha was fully aware of this provision in her sister’s will, and had ample time in which to exercise or renounce the power after Ada died. This Court expressly relied on these facts in sustaining taxation of Martha’s estate on the property subject to the unexercised power. See Jenkins v. United States, 5 Cir., 1970, 428 F.2d 538, 550-551.
Much was made in the Jenkins case of the question whether probate in Georgia is “interest-creating” or “title-accommodating.” That question was relevant as part of a broader inquiry, to wit: under Georgia law, since the instrument creating the power was a will, would the do-nee’s purported exercise of the power prior to probate of the will be null and void? This inquiry was necessary in Jenkins because the donee, though she knew of the power and outlived the donor, died before the donor’s will was probated. If, as a matter of state law, any document executed by Martha Jenkins as donee prior to probate could have had no present or future legal effect, the Court would have had to conclude that Martha died without ever having had the privilege of disposing of the property, and hence that the value of the property could not be taxed to her estate. We found, however, that probate in Georgia is title-accommodating; that Martha could have exercised the power effectively at any time during the seventeen days between Ada’s death and her own; and that hence she had, at the time of her death, an unexercised power of appointment within the meaning of Section 2041 of the Internal Revenue Code of 1954.
In the instant case the ultimate inquiry is the same: did the donee of the power, Mrs. Bagley, have the opportunity to direct the course of the property in question at her death? The facts, however, are significantly different.
Mr. Bagley’s last will was executed on December 21, 1962. Two days later, on December 23, Mr. and Mrs. Bagley died in an automobile accident, under circumstances making it impossible to determine whether or not they died at the same moment. Article X of Mr. Bagley’s will provided that in the event he or his wife should die “simultaneously *1272or under such circumstances that it cannot be readily determined which of us died first, then it is my will that my wife shall be deemed to have survived me.” Article VI. 3 of Mr. Bagley’s will further provided:
Upon the death of my wife, KIR-STINE, the principal of the [aforementioned] trust fund then remaining shall be paid over free and discharged of all trusts as my wife in her last will may appoint by a provision specifically referring to this power; and I hereby confer upon my wife the right by a provision in her last will containing such a specific reference to this power to exercise said power of appointment in her sole and uncontrolled discretion and as she may wish including without limiting the generality of the foregoing, the right to exercise it in favor of her own estate.
Thus a general clause in Mrs. Bagley’s will purporting to dispose of all property of which she might have the power to dispose at the time of her death would not have effectively exercised the power conferred by her husband’s will. Cf. Hamilton v. Florida Nat. Bank of Jacksonville, 112 Fla. 566, 151 So. 409, 91 A.L.R. 615 (1963). Without knowledge of this provision, she was powerless. There is nothing whatsoever in the pleadings or affidavits in this case to indicate that Mrs. Bagley ever knew this provision existed.1
The majority in this case does not consider the question of Mrs. Bagley’s knowledge. As to her opportunity to exercise the power, the majority holds that it could have been exercised in the “theoretical instant” in which she survived her husband, by virtue of Article X of his will. In my view, this reasoning is incompatible with the purpose of the statute we are construing.
The fact that quite apparently the deaths of Mr. and Mrs. Bagley were very nearly simultaneous renders the question whether probate in Florida is “title-accommodating” or “interest-creating” superfluous. Wé are not bound, by the mere fact that Florida law affords some legal efficacy to simultaneous-death clauses of the type included in Mr. Bagley’s will, to let that clause rule this case under the federal estate tax laws. We cannnot ignore the realities of the decedent’s situation, and make the result turn on “the niceties of the conveyancer’s art.” See Helvering v. Safe Deposit & Trust Co., 316 U.S. 56, 58 n. 1, 62 S.Ct. 925, 927 n. 1, 86 L.Ed. 1266 (1942). Congress, in amending the power-of-appointment provision of the estate tax law from time to time, has expressed concern for the fact that many powers of appointment are not discovered until it is too late for the donees to do anything about them, and has sought to avoid setting traps for the unwary. See U.S. Code Cong, and Adm.Serv., Vol. 2, 82nd Cong., 1st Sess., 1951, pp. 1530-32, quoted in the opinion of this Court in United States v. Merchants National Bank of Mobile, 1958, 261 F.2d 570, 574-575. Today we spring a trap set only by ourselves. As a result of our decision, the estate passing to the heirs of one decedent will be diminished by federal estate taxes on property passing to another decedent’s beneficiaries, without justification in law or equity.
. The fact that the last wills of Mr. and Mrs. Bagley bear the same date is not conclusive, certainly not so much so as to warrant summary judgment for the Government.