The principles set forth in the Evilsizor case control the disposition of the present question. See also Estate of Julius Selling, supra; Estate of Edward F. Pipe v. Commissioner, 241 F. 2d 210, affirming 23 T. C. 99, certiorari applied for May 27, 1957; Estate of Harrison P. Shedd, 23 T. C. 41, affd. 237 F. 2d 345, certiorari denied 352 U. S. 1024; Estate of Michael Melamid, 22 T. C. 966. The petitioner emphasizes not only that the surviving spouse may deplete the entire property, but that due to economic circumstances which have developed, it is likely that there will be no residue for the son to enjoy.

In addition, the surviving spouse in the Shedd case was entitled to only two-thirds of the income during her lifetime. In Estate of Edward F. Pipe, 23 T.C. 99, appeal pending (C.A. 2), and Estate of Michael Melamid, 22 T.C. 966, the devises were direct, and not in trust, of legal life estates to the surviving widows. Section 812(e)(1)(F) is clearly limited to trusts.

`The basic principle * * * is that the spouse first to die shall be permitted to pass on to the surviving spouse free of estate tax up to one-half of his or her estate, provided only that the terms of the transfer are such that this property will be taxable in the estate of the surviving spouse.' Estate of Pipe v. Commissioner, 23 T.C. 99, 104. Under this construction of the Act, we are more concerned with what the widow actually received in the settlement of her husband's estate than with what she was technically entitled to receive but actually did not receive.

`The basic principle * * * is that the spouse first to die shall be permitted to pass on to the surviving spouse free of estate tax up to one-half of his or her estate, provided only that the terms of the transfer are such that this property will be taxable in the estate of the surviving spouse.' Estate of Pipe v. Commissioner, 23 T.C. 99, 104. Under this construction of the Act, we are more concerned with what the widow actually received in the settlement of her husband's estate than with what she was technically entitled to receive but actually did not receive.

See sections 20.2056(b)-1(a) through 1(c)(1), Estate Tax Regs. The principle underlying this rule is that decedent's estate may receive a deduction for property passing to the surviving spouse, so long as the property so transferred will be taxable in the estate of the surviving spouse if on hand on her death. Estate of Pipe v. Commissioner Dec. 20,622, 23 T.C. 99, 104 (1954). It is settled that the relevent time for determining whether an interest is a terminable interest is at the time of decedent's death.

See McGehee v. Commissioner 260 F.2d 818 (5th Cir. 1958); Batterton v. United States 406 F.2d 247 (5th Cir. 1968), cert. denied 395 U.S. 934 (1969). Also compare Estate of Pipe v. Commissioner 241 F.2d 210 (2d Cir. 1957), affg. 23 T.C. 99 (1954), cert. denied 355 U.S. 814 (1957), with Tyler v. United States 468 F.2d 959 (10th Cir. 1972). Decision will be entered for the respondent

However, the fact that the same property is twice subject to tax is not sufficient to permit the deduction sought by petitioner, which is not authorized either by section 2013 or by any other Code section. Jackson v. United States, 376 U.S. 503, 509-510 (1964); Pipe's Estate v. Commissioner, 241 F.2d 210, 214 (2d Cir. 1957), affg. 23 T.C. 99 (1954), followed in May's Estate v. Commissioner, 283 F.2d 853, 856 (2d Cir. 1960), affg. 32 T.C. 386 (1959); Loughridge's Estate v. Commissioner, 183 F.2d 294, 301 (10th Cir. 1950), affg. in part and revg. in part 11 T.C. 968 (1948). Moreover, petitioner's expansive reading of section 2013(d)(3) would bring that section into conflict with the marital deduction provisions.

But clearly this limitation is not sufficient to require disallowance of the marital deduction; such a holding would render meaningless the statutory provision which encompasses a power "exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either" (emphasis added); see also sec. 20.2056(b)-5(g), Estate Tax Regs. We see nothing in such cases as Estate of [35 TCM (CCH) 1008] Opal v. Commissioner 71-2 USTC ¶ 12,810, 450 F. 2d 1085 (2d Cir. 1971), affg. Dec. 29,945 54 T.C. 154 (1970), Pipe's Estate v. Commissioner 57-1 USTC ¶ 11,669, 241 F. 2d 210 (2d Cir. 1957), affg. Dec. 20,622 23 T.C. 99 (1954), and Estate of Francis F. Field Dec. 26,243, 40 T.C. 802 (1963), which dictates a contrary conclusion. Cf. Tyler v. United States 72-2 USTC ¶ 12,894, 468 F. 2d 959 (10th Cir. 1972); United States v. Spicer 64-2 USTC ¶ 12,239, 332 F. 2d 750 (10th Cir. 1964); McGehee v. Commissioner 58-2 USTC ¶ 11,833; 58-2 USTC ¶ 11,817, 260 F. 2d 818 (5th Cir. 1958) (on rehearing); Estate of Walter L. Edwards Dec. 31,392, 58 T.C. 348 (1972).

provides that where a decedent passes by will a life estate to a surviving spouse with a power in the spouse alone to appoint the entire interest either to himself or his estate, such life estate will qualify for the marital deduction as an exception to the terminable interest rule. Hoffman v. McGinnes, 277 F.2d 598 (3d Cir. 1960); see also Estate of Opal v. Commissioner, 450 F.2d 1085, 1086-1087 (2d Cir. 1971), affg. 54 T.C. 154 (1970); Pipe's Estate v. Commissioner, 241 F.2d 210, 213 (2d Cir. 1957), affg. 23 T.C. 99 (1954), cert. denied 355 U.S. 814 (1957). This exception applies, however, only if such power is ‘exercisable by such spouse alone and in all events.’

Nettz v. Phillips, 202 F.Supp. 270 (S.D. Iowa 1962). Compare, e.g., Tyler v. United States, 468 F.2d 959, 962-963 (C.A. 10, 1972), with Pipe's Estate v. Commissioner, 241 F.2d 210 (C.A. 2, 1957), affirming 23 T.C. 99 (1954). To reflect the disposition of other issues,