concurring:
I concur with so much of the majority opinion as holds that the Virginia Supreme Court would, in all probability, adopt a bright line rule which would require that the power to make gifts must be specifically set forth in the document creating a durable power of attorney. For this reason, I think it is appropriate to reverse the decision of the tax court. I write separately because part B of the opinion sets forth an alternative basis for this court’s decision with which I do not agree.
Part B of the majority opinion undertakes to determine whether Olive Casey intended to grant the power to make gifts when she granted the power of attorney to her attorney-in-fact. In so doing, the majority weighs both the wording of the instrument, as well as the extraneous circumstances giving rise to the creation of the instrument. The tax court undertook a similar analysis. The majority finds that the wording of the instrument, together with the extraneous circumstances, does not justify the conclusion that the power of gift was conferred upon the attorney-in-fact. To the contrary, the tax court found that the intent of the principal was to grant to her attorney-in-fact the power of gift.
The determination of the intent of Olive Casey, principal, at the time she executed the durable power of attorney is a question of fact.
Because we are bound to review questions of fact on a clearly erroneous standard (Hunt v. CIR, 938 F.2d 466 (4th Cir.1991)), I am not prepared to say that the tax court’s finding that Olive Casey intended to grant the power of gift to her attorney-in-fact is clearly erroneous.