purport to relate back to decedent's death but was effective as of July 2, 1969, the date she executed and filed her election with the Surrogate's Court." Estate of Neugass v. Commissioner, 65 T.C. at 193–194. Because of that finding, we held that no "interest in property" within the meaning of section 2056(a) passed at the date of the decedent's death. We do not, however, consider our opinion in Neugass or its subsequent reversal to alter the basic principle established in Mackie. There is no substantial difference between an elective testamentary bequest of a nonterminable interest which relates back to the testator's death and a spouse's election against a will under State law. Both qualify for the marital deduction so long as the interest actually passing is nonterminable. Estate of Neugass v. Commissioner, 555 F.2d 322, 328; Estate of Mackie v. Commissioner, 64 T.C. at 312.

Respondent alternatively contends that even if the surviving spouse acquired an "interest in property" within the meaning of section 2056(a), it is a nondeductible, terminable interest under section 2056(b)(1). Because the surviving spouse must personally elect the $40,000 bequest, her right to the $40,000 should be viewed as terminable at the date of the decedent's death. Unless the election is made and timely made, her interest will fail. Thus the interest is contingent and, therefore, terminable. See also Stephens, Maxfield, & Lind, Federal Estate and Gift Taxation 5-98 n. 141 (3d ed. 1974).

We do not, however, read section 2056(b)(1) so strictly. This Court has never considered the mere procedural requirement of a personal election by the surviving spouse to be a contingency for purposes of section 2056(b)(1). See, e.g., Estate

2 Sec. 2056(b)(1) reads in pertinent part:

SEC. 2056(b). LIMITATION IN THE CASE OF LIFE ESTATE OR OTHER TERMINABLE INTEREST.

(1) GENERAL RULE.-Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest

(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money's worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and (B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse;

of Mackie v. Commissioner, supra at 311; Estate of Rensenhouse v. Commissioner, 31 T.C. 818, 821 (1959). Thus it is well established that the mere presence of a right of election against a will is not a disqualification so long as the interest which passes to the surviving spouse is nonterminable. Dougherty v. United States, 292 F.2d 331, 336 (6th Cir. 1961); United States v. Crosby, 257 F.2d 515, 519 (5th Cir. 1958); United States v. Traders National Bank of Kansas City, 248 F.2d 667, 669 (8th Cir. 1957); Hawaiian Trust Co. v. United States, 412 F.2d 1313, 1314 (Ct. Cl. 1969). And the result is the same whether the right of election is encompassed by will or by statute. Estate of Mackie v. Commissioner, supra at 312. Nevertheless, respondent argues that because the right to elect is personal to the surviving spouse, her death could cause a failure of that right. Thus, if the surviving spouse did not in fact survive the decedent or died before properly electing her bequest, the interest would have failed. It is clear that survival is not a condition which makes an interest terminable. Sec. 2056(b)(3). Moreover, we do not consider the surviving spouse's interest in the $40,000 bequest to be otherwise contingent. The written election is a mere procedural formality; there is no substantial condition, other than

3 Sec. 2056(b)(3) reads:

SEC. 2056(b)(3). INTEREST OF SPOUSE CONDITIONAL ON SURVIVAL FOR LIMITED PERIOD. For purposes of this subsection, an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail on the death of such spouse if—

(A) such death will cause a termination or failure of such interest only if it occurs within a period not exceeding 6 months after the decedent's death, or only if it occurs as a result of a common disaster resulting in the death of the decedent and the surviving spouse, or only if it occurs in the case of either such event; and (B) such termination or failure does not in fact occur.

• Sec. 2056(b)(3) is not dispositive of the argued contingency of the spouse's death after the decedent's death but before electing the alternative bequest. Because the will requires the election to be made within 60 days after the qualification of the executor, the election could be made more than 6 months after the decedent's death. This would occur, for example, where the executor does not qualify as such until 6 months after the decedent's death. Because the spouse would have another 60 days from such qualification to elect the alternative bequest, it is possible that she might die before the 60 days ran without ever having elected the bequest. Thus her death could arguably cause a failure of the election more than 6 months after the decedent's death. Because we must look at any contingencies which may occur from the date of the decedent's death, Jackson v. United States, 376 U.S. 503 (1964), the 6month amnesty of sec. 2056(b)(3) would not be available for this second, arguable contingency.

survival, attached to the spouse's enjoyment of the bequest. Compare Allen v. United States, 359 F.2d 151 (2d Cir. 1966), with United States v. First National Bank & Trust Co. of Augusta, 297 F.2d 312 (5th Cir. 1961).

In Heidrich v. Commissioner, 55 T.C. 746, 752-753 (1971), the issue was whether unexpended trust funds would pass to the donee upon his attaining the age of 21. At any time after attaining 21, the donee could make a written demand which, upon receipt by the trustee, would terminate the trust forcing delivery of the trust funds to the donee. In holding that the inds did pass to the donee at age 21, we stated:

While making such a written demand might constitute a "positive act” (to borrow from the language of Rev. Rul. 60-218, * *), some sort of positive action, whether it be signing a check or physically grasping a corporate bond, is almost always necessary to place property within one's absolute and immediate possession. Here, where the only impediment to the donee's use and possession of the unexpended trust funds will be the submission of a written demand to the trustee and where the written demand will be purely within the donee's power to make, we must conclude that the trust funds will pass to the donee at the time the right to make the written demand accrues. [55 T.C. at 753; emphasis added.]

* *

We think that reasoning applies equally to the case at hand. At the date of the decedent's death, the surviving spouse needed only to make her written election to take the $40,000 bequest. The fact that the election might be made within more than 6 months after the decedent's death does not make the interest actually received terminable.

Although the surviving spouse's death before electing the bequest could prevent her from so electing, once elected, the bequest is nonterminable and, therefore, deductible. See Estate of Green v. United States, 441 F.2d 303, 307-308 (6th Cir. 1971); Hamilton National Bank of Knoxville v. United States, 353 F.2d 930, 932-933 (6th Cir. 1965); United States v. First National Bank & Trust Co. of Augusta, supra at 315-317; Estate of Gale v. Commissioner, 35 T.C. 215 (1960); sec. 20.2056(e)-2(c), Estate Tax Regs.; see also Rev. Rul. 76–199, 1976-1 C.B. 288, 289. Cf. Estate of Abely v. Commissioner, 60 T.C. 120 (1973), affd. 489 F.2d 1327 (1st Cir. 1974). We reach this result because we find the requirement of a written election to be a mere procedural formality. In this regard we distinguish Estate of Abely v. Commissioner, supra. There we held a widow's allowance to be a terminable interest within

the meaning of section 2056(b)(1). The allowance was personal to the widow; unless a decree awarding it became final before her death, the right to the allowance would not survive her. Citing relevant State law, we emphasized that the death of the widow, even before an appeal from an award of the allowance was heard, would terminate her right to the allowance. We do not consider the award of a widow's allowance only by final decree of court to be a mere procedural formality. However, where the surviving spouse need only indicate in writing her desire to take an alternate bequest, we must conclude that the bequest passes to the spouse at the time that the right to so elect accrues.

Because other adjustments have been agreed to by the parties,

Decision will be entered under Rule 155.

ESTATE OF GENEVIEVE ROLIN, DECEASED, HAYDEE ROLIN AND MARINE MIDLAND BANK-NEW YORK, EXECUTORS, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 5766-73. Filed September 15, 1977.

Decedent's husband was grantor of an inter vivos trust in which the grantor reserved the income for life with power of revocation. Upon grantor's death, the trust res was to be divided into trust A (marital trust) and trust B. Decedent was to receive the income of trust A and trust B for life and was granted a power of appointment as to the principal of trust A. Upon the death of her husband, followed by her death, pursuant to authority in her will, decedent's executor purported to renounce her interest in trust A. Held, the renunciation was effective and decedent's interest in trust A is not includable in her gross estate. Estate of Dreyer v. Commissioner, 68 T.C. 275 (1977); Estate of Hoenig v. Commissioner, 66 T.C. 471 (1976). Held, further, the administrative power held by decedent over the assets in trust B were not such as to constitute a general power of appointment which would include such assets in her gross estate under sec. 2041 I.R.C. 1954.

John L. Gray, Jr., Mark S. Rapaport, John T. McCafferty, and Keith G. McWalter, for the petitioner.

Michael A. Menillo, for the respondent.

OPINION

QUEALY, Judge: Respondent determined a deficiency in the amount of $74,435.80 in petitioner's estate tax. In an amendment to his answer, respondent determined that this amount should be increased to $99,280.98.

The only issues for decision are as follows:

(1) Whether the disclaimer and renunciation by the decedent's executors of decedent's interest in the marital deduction trust created by decedent's husband was effective so as to exclude the value of that trust from decedent's taxable estate;

(2) Whether decedent had a general power of appointment over the assets of the nonmarital trust created by decedent's husband so as to include the value of that trust in decedent's taxable estate.

All of the facts have been stipulated. The stipulation of facts and the exhibits attached thereto are incorporated herein by this reference.

Genevieve Rolin, hereinafter sometimes referred to as decedent, died testate on January 31, 1969. At the time of her death, decedent was a resident of Scarsdale, N.Y. Her will was admitted to probate by the Surrogate's Court of Westchester County, N.Y., on May 12, 1969. On that same day, letters testamentary were issued to Haydee Rolin and the Marine Midland Bank-New York, as executors of her estate.

These executors are the petitioners herein. At the time the petition was filed, petitioner Haydee Rolin, resided in San Anselmo, Calif., and petitioner Marine Midland Bank, was a New York corporation with offices in New York city, N.Y. The Federal estate tax return for the Estate of Genevieve Rolin was filed with the District Director of Internal Revenue, Manhattan, N.Y.

Decedent's husband, Daniel H. Rolin, had created a revocable trust under a trust agreement dated April 28, 1958. The entire net income of this trust was paid to Mr. Rolin during his lifetime. All of the assets of the trust as of the date of Mr. Rolin's death were included as part of his adjusted gross estate. Mr. Rolin's will directed that his entire residuary estate be added to this trust.

The trust agreement provided that upon the death of Mr. Rolin, the property of the trust should be divided into two