"any remainder of my estate not required for her use" should not be presumed to have been idly inserted by Mr. Gilchrist; rather its employment and placement obviously imposed some limitation upon the grant of authority preceding it. Petitioner contends that both the terms "require" and "use" have been held to impose limitations upon bequests equatable with support and maintenance and their joint employment in the will strongly suggests Mr. Gilchrist's intention to limit the scope of the power. "Require" has been interpreted to mean "need" and that need equates with maintenance according to one's station in life. Furthermore petitioner contends that the surrounding circumstances buttress this conclusion. At the time of her husband's death Mrs. Gilchrist was 72 years of age and, at date of execution of his will and at his death, she was without descendants or dependents and was financially secure. Mr. Gilchrist expected his relatives to be the ultimate beneficiaries of his estate and the use of the phrase "not required for her use" mandates the conclusion that the power conferred upon his wife was limited in scope to her needs of support and maintenance.

Respondent contends that Mr. Gilchrist's will authorizes his wife to use corpus without expressing or designating any use or purpose. The literal reading of the phrase "not required for her use" does not state any ascertainable standard and her husband gave her the "full rights to sell or transfer all the remainder of his property." The dispositive clause clearly leaves to her discretion the kind and extent of the use which she required or desired. Additionally, the surrounding circumstances, as well as the terms of the will itself, clearly indicated Mr. Gilchrist's intentions. He and his wife had no children or dependents, he prepared his own will, and prior to his wife's bequest he provided cash bequests for all of his heirs. It was Mr. Gilchrist's intent that his wife receive the remainder of his estate to do with as she saw fit, the remainder, if any, to go to the heirs to whom, previously, he had provided specific bequests. By not specifically providing for any ascertainable standard limiting his wife's power to consume the property, her general power is includable in her estate at the time of her death. Lehman v. United States, 448 F.2d 1318 (5th Cir. 1971).

We begin with the premise that whatever property interests were created under Mr. Gilchrist's will must be determined under applicable State law, in the instant case the Texas law of

wills. Helvering v. Stuart, 317 U.S. 154 (1942); Morgan v. Commissioner, 309 U.S. 78 (1940). However, the taxability of decedent's interest is to be determined by Federal tax law. Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970), cert. denied 400 U.S. 829 (1970); Grossman v. Campbell, 368 F.2d 206 (5th Cir. 1966); Phinney v. Kay, 275 F.2d 776 (5th Cir. 1960). "If the practical exercise of her [Mrs. Gilchrist's] powers of disposition and control for her own benefit was not confined within limitations at least as stringent as those prescribed by Federal law, she enjoyed a general power of appointment for Federal estate tax purposes regardless of the label attached to her interest by State courts." Lehman v. United States, supra at 1319.

Under Texas law the paramount concern in construing a will is the intention of the testator. Estate of Cox v. Commissioner, 59 T.C. 825 (1973); 61 Tex. Jur.2d sec. 144. Absent an ambiguity such intention must be arrived at from the will's four corners. Atkinson v. Kettler, 372 S.W.2d 704 (Tex. Civ. App. 1963). However, if the will is susceptible of different constructions, extrinsic evidence is admissible to ascertain the meaning sought to be expressed by the testator. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960). Although a will should be construed to give effect to every part of it and it will not be presumed the testator intended to do any useless thing (Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S. W.2d 39 (1955)), a layman who draws his own will cannot be deemed to have used words in the same sense as if they were used by an attorney." Bergin v. Bergin, 159 Tex. 83, 315 S. W.2d 943 (1958).

[11]

With the foregoing principles in mind our inquiry, "then, is whether the testamentary language [of Mr. Gilchrist's will], given a Texas-style construction, acually confined * * * [Mrs. Gilchrist's] authority to the 'ascertainable standard' demanded by section 2041." Lehman v. United States, supra at 1320. Mr. Gilchrist gave his wife "the income the use and benefits with full rights to sell or transfer all the remainder of my property, both

10Upon reading Mr. Gilchrist's one-page will it is readily apparent that was not drafted by an attorney but by a layman, presumably, Mr. Gilchrist.

"We note that petitioner, on brief, aware of this proposition has argued its case under the case law of Connecticut, Indiana, Wisconsin, Ohio, and Massachusetts and we are perplexed by this action. While resort to such other local law may be relevant if Texas law is silent in the area, we have found ample Texas case law to resolve this issue and therefore find petitioner's citation of authorities inapposite.

real and personal, so long as she may live." Thus she had the power to sell all the property and/or transfer it, i.e., to give it away. Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600, 605 (1951); Lehman v. United States, an unreported case (S.D. Tex. 1971, 27 AFTR 2d 71-1662, 1667, 71-1 USTC par. 12,744, p.86,826–86,827). Decedent had the unqualified right of disposition of all her husband's property and the rights of the remaindermen were limited to whatever estate remained at her death. It therefore appears under Texas law that she received a "defeasible fee simple absolute." Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948), 61 Tex. Jur.2d sec. 243.

However, if one assumes that Mrs. Gilchrist was merely a life tenant, rather than the holder of a defeasible fee simple absolute, with the restricted right to sell the property and no right to defeat the remaindermen's interests by gifting it away (Nye v. Bradford, 44 Tex. 618, 193 S.W.2d 165 (1946)), and while the sales proceeds to the extent not consumed by decedent would pass under the will to the remaindermen (Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823 (1945)), "these restrictions relate to the power to convey, not to the power to consume." Lehman v. United States, 448 F.2d at 1320. In the instant case, the power of consumption is the critical element that must be scrutinized under the operation of section 2041.

It is apparent from a reading of the will that the object of Mr. Gilchrist's bounty was his wife. He bequeathed to her the "income the use and benefits" of the major portion of his estate. Moreover, he appointed his wife executrix of the estate directing that no bond be required of her and that the probate court have no control over the estate other than to probate the will and approve inventory and appraisement. In short, Mrs. Gilchrist was given the unfettered discretion to consume estate property and it is clear that Texas courts would not limit such consumption solely to her support and maintenance. The Texas construction of this will and in particular the phrase "not required for her use" yields the result that the phraseology is not a limitation upon the rights of the wife but, to the contrary, a limitation on the rights of the remaindermen to take in the event Mrs. Gilchrist had not disposed of the remainder of the estate prior to her death.12

Where a will contains a provision that on a certain contingency an estate given to one person shall pass to another, the will is construed under Texas law to grant the first taker the greatest possible estate. 61 Tex. Jur.2d sec. 134.

wills. Helvering v. Stuart, 317 U.S. 154 (1942); Morgan v. Commissioner, 309 U.S. 78 (1940). However, the taxability of decedent's interest is to be determined by Federal tax law. Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970), cert. denied 400 U.S. 829 (1970); Grossman v. Campbell, 368 F.2d 206 (5th Cir. 1966); Phinney v. Kay, 275 F.2d 776 (5th Cir. 1960). "If the practical exercise of her [Mrs. Gilchrist's] powers of disposition and control for her own benefit was not confined within limitations at least as stringent as those prescribed by Federal law, she enjoyed a general power of appointment for Federal estate tax purposes regardless of the label attached to her interest by State courts." Lehman v. United States, supra at 1319.

Under Texas law the paramount concern in construing a will is the intention of the testator. Estate of Cox v. Commissioner, 59 T.C. 825 (1973); 61 Tex. Jur.2d sec. 144. Absent an ambiguity such intention must be arrived at from the will's four corners. Atkinson v. Kettler, 372 S.W.2d 704 (Tex. Civ. App. 1963). However, if the will is susceptible of different constructions, extrinsic evidence is admissible to ascertain the meaning sought to be expressed by the testator. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960). Although a will should be construed to give effect to every part of it and it will not be presumed the testator intended to do any useless thing (Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39 (1955)), a layman who draws his own will cannot be deemed to have used words in the same sense as if they were used by an attorney." Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943 (1958).

[11]

With the foregoing principles in mind our inquiry, “then, is whether the testamentary language [of Mr. Gilchrist's will], given a Texas-style construction, acually confined * * * [Mrs. Gilchrist's] authority to the 'ascertainable standard' demanded by section 2041." Lehman v. United States, supra at 1320. Mr. Gilchrist gave his wife "the income the use and benefits with full rights to sell or transfer all the remainder of my property, both

10Upon reading Mr. Gilchrist's one-page will it is readily apparent that it was not drafted by an attorney but by a layman, presumably, Mr. Gilchrist.

"We note that petitioner, on brief, aware of this proposition has argued its case under the case law of Connecticut, Indiana, Wisconsin, Ohio, and Massachusetts and we are perplexed by this action. While resort to such other local law may be relevant if Texas law is silent in the area, we have found ample Texas case law to resolve this issue and therefore find petitioner's citation of authorities inapposite.

real and personal, so long as she may live." Thus she had the power to sell all the property and/or transfer it, i.e., to give it away. Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600, 605 (1951); Lehman v. United States, an unreported case (S.D. Tex. 1971, 27 AFTR 2d 71-1662, 1667, 71–1 USTC par. 12,744, p.86,826–86,827). Decedent had the unqualified right of disposition of all her husband's property and the rights of the remaindermen were limited to whatever estate remained at her death. It therefore appears under Texas law that she received a "defeasible fee simple absolute." Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948), 61 Tex. Jur.2d sec. 243.

However, if one assumes that Mrs. Gilchrist was merely a life tenant, rather than the holder of a defeasible fee simple absolute, with the restricted right to sell the property and no right to defeat the remaindermen's interests by gifting it away (Nye v. Bradford, 44 Tex. 618, 193 S.W.2d 165 (1946)), and while the sales proceeds to the extent not consumed by decedent would pass under the will to the remaindermen (Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823 (1945)), "these restrictions relate to the power to convey, not to the power to consume." Lehman v. United States, 448 F.2d at 1320. In the instant case, the power of consumption is the critical element that must be scrutinized under the operation of section 2041.

It is apparent from a reading of the will that the object of Mr. Gilchrist's bounty was his wife. He bequeathed to her the "income the use and benefits" of the major portion of his estate. Moreover, he appointed his wife executrix of the estate directing that no bond be required of her and that the probate court have no control over the estate other than to probate the will and approve inventory and appraisement. In short, Mrs. Gilchrist was given the unfettered discretion to consume estate property and it is clear that Texas courts would not limit such consumption solely to her support and maintenance. The Texas construction of this will and in particular the phrase "not required for her use" yields the result that the phraseology is not a limitation upon the rights of the wife but, to the contrary, a limitation on the rights of the remaindermen to take in the event Mrs. Gilchrist had not disposed of the remainder of the estate prior to her death.12

12Where a will contains a provision that on a certain contingency an estate given to one person shall pass to another, the will is construed under Texas law to grant the first taker the greatest possible estate. 61 Tex. Jur.2d sec. 134.