J. SPENCER BELL, Circuit Judge:
The Estate of Mervin G. Pierpont petitions for review of the Tax Court's decision that the estate was not entitled to a marital deduction with respect to a testamentary trust. The Tax Court concluded that the power granted by Pierpont's will to the life beneficiary, his wife, Lallah R. Pierpont, did not constitute, under Maryland law, a power to appoint the corpus of the trust to her estate within the meaning of § 2056(b) (5) of the Internal Revenue Code of 1954. The language employed in creating the Lallah R. Pierpont Trust, quoted below, makes it clear that Pierpont desired to take advantage of the marital deduction provisions of § 2056(b) (5). Concededly the only controversy before the Tax Court and before this court on appeal is whether or not the power created met the third condition prescribed under Treasury Regulations, § 20.2056(b)-5:
In the fall of 1948, following the passage of the Internal Revenue Act of 1948, Pierpont began discussions with officers of a Maryland Trust Company concerning the preparation of his will. During these discussions, Pierpont expressed the dual desires to make adequate provision for his wife and to minimize estate taxes by taking advantage of the recently enacted marital deduction provision of the Internal Revenue Code. Trust Company officials suggested that Pierpont set up a testamentary trust, in favor of his wife, providing for income payments to her for life and granting her the power to appoint the principal at her death. These suggestions were followed, and Pierpont's attorney created the Lallah R. Pierpont Trust under Item Sixth of his will. Pertinent portions of the Trust provided:
Upon Pierpont's death in 1956, the executors of his estate filed a federal estate tax return with the District Director, claiming as a marital deduction the value of the Lallah R. Pierpont Trust. The Commissioner disallowed the deduction, and in apt time, the estate filed a petition for review in the Tax Court. Thereafter, the widow, the trustee, and
All named respondents were duly summoned. Whether for tax considerations or some other, neither William nor his wife filed an answer to the petition and neither appeared individually nor by representative. The court appointed a guardian ad litem for William's children and descendants and the guardian, without admitting or denying the allegations of the complaint, by way of answer submitted his wards' rights for determination by the court. This answer was drafted by petitioners' counsel, who now represents the estate in the present controversy. The Masonic fraternal organization filed an answer agreeing that the court could grant the relief prayed for in the petition.
The Circuit Court of Baltimore City passed a decree pro confesso against the respondents named in the complaint and referred the matter to an examiner-master. After a hearing, which consisted in its entirety of the testimony of an officer of the Trust Company, the examiner-master filed his report and it was signed by the court. The report incorporated verbatim a memorandum of law submitted by petitioners' counsel
No appeal was taken from the decree.
On review of the Commissioner's deficiency determination by the Tax Court, that court held the decree not binding as to extent of Lallah's power of appointment because "the proceeding was nonadversary and because [the] petition therein, upon which the decree was based, was admittedly uncontested and the only apparent purpose thereof was to obtain a tax advantage. In effect, the decree was a consent decree, and does not settle the instant question for Federal tax purposes." The court then made an independent survey of the applicable Maryland law and concluded that "a donee of a granted power of appointment does not have the right to appoint to his estate unless the donor has, by express
The estate attacks both major premises of the Tax Court decision, contending that the Tax Court was conclusively bound by the decree of the Circuit Court of Baltimore City that Lallah had the power to appoint to her estate. It further contends that even if the Tax Court was not so bound, it erred in its independent determination that under Maryland law Lallah was unable to appoint to her estate. We are convinced that the Tax Court was correct on both points.
We recognize that we are bound by the law of Maryland in determining whether or not Lallah had those incidents of dominion over the corpus of the trust enumerated in the Int.Rev.Code of 1954, § 2056(b) (5), that would qualify the estate to take a marital deduction. As stated by the Supreme Court in Morgan v. Commissioner, 309 U.S. 78, 80, 60 S.Ct. 424, 426, 84 L.Ed. 585 (1940):
See Aquilino v. United States, 363 U.S. 509, 513, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); Helvering v. Stuart, 317 U.S. 154, 161-62, 63 S.Ct. 140, 87 L.Ed. 154 (1942); Uterhart v. United States, 240 U.S. 598, 603, 36 S.Ct. 417, 60 L.Ed. 819 (1916).
The law of a state, under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is what the judges of the appellate courts, in their collective wisdom, say it is. The same may not be said where the law of a state has been determined and applied by a nisi prius court, for its decisions, unlike those rendered by reviewing courts, do not lay down principles of law that must be followed as binding precedents. King v. Order of United Commercial Travelers of America, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608 (1948). Nonetheless, the Supreme Court has declared that such decisions, having settled property rights and interests between parties, must be followed by the federal courts in determining resultant tax liabilities — provided certain ground rules are followed. In essence those ground rules provide that the state court proceedings must not have been collusive — "collusive in the sense that all the parties joined in a submission of the issues and sought a decision which would adversely affect the Government's right to additional * * * tax." Freuler v. Helvering, 291 U.S. 35, 45, 54 S.Ct. 308, 312, 78 L.Ed. 634 (1934). In view of the circumstances of this case — the nonadversary character of the proceedings before the nisi prius court, the failure of the court appointed examiner-master to make an independent inquiry of the Maryland law, and the failure of the court to do any more than rubber stamp the examiner-master's report — we find the decree of the Circuit Court of Baltimore City to have been collusive as that term is employed in Freuler. While the Third Circuit reads Freuler somewhat differently and apparently requires improper conduct to render proceedings in a nisi prius court collusive, Gallagher v. Smith, 223 F.2d 218 (3 Cir. 1955), we feel our decision is in line with the better reasoned cases of other circuits. See, e. g., the recent cases of Estate of Peyton v. Commissioner, 323 F.2d 438 (8 Cir. 1963), and Estate of Faulkerson v. United States, 301 F.2d 231 (7 Cir.), cert. denied, 371 U.S. 887, 83 S.Ct. 182, 9 L.Ed. 2d 121 (1962). Not to the contrary is our decision of Pitts v. Hamrick, 228 F.2d 486, 490 (4 Cir. 1955), where the decision of a South Carolina nisi prius court was accepted "as evidencing the law of the state * * *" in a situation where there was "no showing that it was entered into as a result of fraud or in a non adversary proceeding." Counsel for the estate lay particular stress on Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465 (1937), where the Supreme Court accepted as binding an Illinois intermediate appellate court decision as to the validity of income assignments under Illinois law. Our holding today is not at
The question remains, however, did the Tax Court, after properly declining to treat the decree of the Circuit Court of Baltimore City as dispositive of the property rights involved, correctly interpret the applicable Maryland law in determining that Lallah could not appoint to her estate? Again, we must conclude that it did. Its decision was in accord with our own decision in Leser v. Burnet, 46 F.2d 756 (4 Cir. 1931). At issue there was whether property passing under execution of a power of appointment to "such person or persons as [the decedent] by her last will and testament * * * shall have named" was to be considered as property passing under a general or special power for purposes of the Internal Revenue Act of 1921. If it passed under a general power, the property was taxable to decedent's estate; if under a special power it was not. We reviewed the Maryland cases and concluded that the property passed under a special power and incurred no tax liability. This was true because under our interpretation of the Maryland decisions these words did not vest in the decedent the power to appoint to her estate and, therefore, an otherwise general power of appointment was under Maryland law to be deemed a special power for purposes of assessing tax liability. Subsequently the Tax Court, sitting en banc, reached the same conclusion in a case involving the exact issue presented today. Estate of William C. Allen, 29 T.C. 465 (1957). The estate argues, however, that both decisions were incorrect, that they incorrectly relied on dicta in various Maryland Court of Appeals cases, and that they ignored the only case directly in point, Wyeth v. Safe Deposit & Trust Co. of Baltimore, 176 Md. 369, 4 A.2d 753 (1939).
We concede that the crucial question of whether an unlimited testamentary power of appointment gives the holder power to appoint to his estate has never been directly passed on by the Maryland Court of Appeals in a factual setting similar to this case. Nevertheless, the question has been discussed in numerous decisions and, except in one circumstance, the invariable conclusion has been that it does not. In Balls v. Dampman, 69 Md. 390, 16 A. 16, 1 L.R.A. 545 (1888), the creditor of a decedent possessed of a similarly worded power sought to have real property of the donee's estate subject to that power sold in satisfaction of the debt. The lower court denied that relief and the Court of Appeals affirmed, holding that the decedent had evinced no intention in her will to appoint the property in satisfaction of the debt. The court went on to point out:
Balls v. Dampman, supra, has been cited and approved in cases subsequent to Wyeth and must be deemed still viable. Lamkin v. Safe Deposit & Trust Co. of Baltimore, supra, and Connor v. O'Hara, supra. We must conclude, therefore, that Leser v. Burnet, 46 F.2d 756 (4 Cir. 1931), is not at variance with the way the Maryland Court of Appeals would decide the issue were it called upon for a specific holding
Finally, we consider the estate's argument that by our holding today we frustrate Pierpont's clearly established dispositive intent. That he had an intention to take advantage of the marital deduction is doubtlessly clear; that he entertained the intention to give his widow the power to appoint to her estate is, at best, disputable. But even if Pierpont intended that Lallah might appoint to her estate, he failed to employ the necessary language which would have enabled her to do so under Maryland law. As recently observed by the Supreme Court: "The achievement of the purposes of the marital deduction is dependent to a great degree upon the careful drafting of wills." Jackson v. United States, 376 U.S. 503, 84 S.Ct. 869, 11 L.Ed.2d 871 (1964). Maryland courts have fashioned a rather strange animal of the general power of appointment where the donor and donee are separate entities and where the donee has not been given the specific power to appoint to his own use. While calling this power a general power of appointment, it is a creature apart from the general power of appointment found in the other states. Nonetheless, entertaining proper respect for the law of Maryland as announced by its highest court, we must conclude, with that court, that "Whether or not this is the kind of will which [decedent] ought to have made, we are not at liberty to rewrite it for him
The decision of the Tax Court is therefore
ALBERT V. BRYAN, Circuit Judge (dissenting):
Actually, denial of the marital exemption by the Tax Court — and the tax assessment of $31,697.63 — rests upon the mere omission of the word "estate" from the clauses in the will creating the power of appointment. Neither the tax statute nor the Maryland decisions are so exacting in their requirements of a power to appoint to the donee's estate. No more is demanded than that the right be expressed. In my judgment the will contains the requisite expression.
The just and scrupulously objective statement of the facts in the opinion of the Court demonstrates the point of my disagreement. In forceful articulation the will — even down to plagiarizing the very phraseology of the Tax Code — manifests that the pertinent marital deduction provisions of the statute were adopted, embraced and incorporated in their entirety. Obviously this includes a power of appointment, such as is contemplated by the statute, with every requisite element. The possible beneficiaries are unlimited — thus necessarily including the donee's estate — by the will's directions that the trust principal be paid over "in such manner and proportions as my wife may designate and appoint". A more encompassing choice of appointees is not easily phrased. To say that, nevertheless, the testament's power fails to comply — because it did not refer to "estate" eo nomine — is for me a captious and pharisaical reading of the ultimate bequest or devise.
Besides, the decision of the Circuit Court of Baltimore City was not collusive in the sense that it was ex parte or by consent. It was non-adversary, but only so because the testator's son and daughter-in-law, both defendants, did not oppose the executor's construction, although a contrary determination would have advantaged them. Their failure to advance their position ought not to convert the suit into a "no-contest". Hence under Freuler v. Helvering, 291 U.S. 35, 45, 54 S.Ct. 308, 78 L.Ed. 634 (1934), the interpretation of the State court bound the Tax Court.
But in my judgment neither this decree nor the testimony dehors the will emphasizing the testator's aim need be considered. The testament itself plainly provides the donee power to name her estate as appointee. The Court of Appeals of Maryland, as the majority now fully points out, has several times passed upon the scope to be accorded a power of appointment. Never, however, has it excluded the estate of the donee as a potential nominee when the organic document clearly permits the estate to be a beneficiary.
In my view the Tax Court has been overcritical and puristic in collection of the sovereign's death tallage. I would reverse.
"Q. Did you do anything more than adopt the-verbatim-the memorandum of law filed in the proceeding by the petitioner * * *?
"A. With the exception of the preface, which is the beginning * * * I adopted the memorandum which was submitted to me, and which I asked for, verbatim, word for word, with the exception of the first page. Every word is Mr. McDaniels'. Does that answer that?
"Q. * * * In preparing this report, did you look at any of these cases? Connor v. O'Hara?
"Q. Lamkin v. Safe Deposit and Trust Company?
"A. No, and not Burnet.
"Q. Balls v. Dampman?
"A. No, I didn't.
"Q. Nor Leser v. Burnet?
"A. No, I didn't.
"Q. What about the Allen case?
"A. I know about the Allen case now.
"Q. At the time you prepared —
"A. I didn't." Record, pp. 67-68.
"What are the outside limits of construction? If the court can give a meaning to a testator's will which he never thought of, what is to prevent the court from writing a new will for him? Where should the court stop? Without doubt, there are very definite limits to the process of judicial construction. Generally, courts give lip service to the proposition that they cannot make a will for the testator. And while, of course, they are in fact doing precisely what they profess not to do, when they follow the process of construction herein outlined, they are restrained in that process by the necessity of finding the construction from the language of the instrument itself. The court will not add a page, or even a paragraph, to the will under the guise of construction. The fiction that the construction comes from the words of the testator in the will must be preserved." Simes, Future Interests, § 78 (1951).