16 T.C. 743">*743 Respondent has determined a deficiency in the amount of $ 29,134.90 in the estate tax of the estate of Edith Wilson Paul, deceased. This deficiency results from respondent's determination that there should be included in the gross estate of the decedent the value of the life estates and the remainder1951 U.S. Tax Ct. LEXIS 229">*231 interests in five-eighths of an estate over 16 T.C. 743">*744 which decedent held a power of appointment. Petitioner contests the determination that the remainder interests should be included in the gross estate.

FINDINGS OF FACT.

In 1947, petitioner filed an estate tax return on behalf of the estate of Edith Wilson Paul, deceased, with the collector of internal revenue at Los Angeles, California.

Decedent's mother (hereinafter referred to as the donor) gave by will one-half of her residuary estate and the property over which she held a power of appointment, in trust, to pay the income to the decedent for life, and upon her death to pay the principal as she shall by will appoint. In default of appointment, the property was to be put in trust for the use of decedent's children living at decedent's death, and the issue of any child who predeceased the decedent, per stirpes. The donor died in the year 1914 a resident of Pennsylvania. Her will was duly probated.

Decedent died in 1946, leaving a will which was duly probated and which provided that all property in her residuary estate, together with the property over which she held a power of appointment should be placed in trust and divided1951 U.S. Tax Ct. LEXIS 229">*232 into eight equal parts for each of her children. Each child was to receive for life the income from the part set apart for him or her. Upon the death of a beneficiary, the principal set apart for that beneficiary was to go to his or her issue absolutely. Decedent expressly designated an adopted daughter as one of her eight children.

The decedent left surviving her eight children, three of whom were born in the lifetime of the donor. The adopted daughter was one of these three. The remaining five were born in the years 1915 through 1922.

In March 1947 all of the natural children of the decedent executed an agreement providing that subject to the approval of the Orphans' Court of Philadelphia County, the one-eighth interests of the five children born after the death of the donor shall be awarded to them absolutely "as provided by the Will of Mary T. Mason Wilson in the event that her daughter failed to exercise the Power of Appointment given to her * * *." The agreement further provided that the Orphans' Court was to be requested to make this award absolutely rather than in trust, "leaving the question undetermined as to what is to happen to the remainder in the event of their 1951 U.S. Tax Ct. LEXIS 229">*233 death."

In May of the same year in a proceeding in which the account of the trustees of the decedent was called for audit, the Orphans' Court made awards in accordance with the agreement of the children and in its decree stated that the parties to the agreement were the only parties affected. In this proceeding the court declared that the 16 T.C. 743">*745 appointment in remainder to the issue of these five children violated the rule against perpetuities and was void for remoteness.

The estate subject to the decedent's power of appointment consisted of personalty having a total value of $ 188,970.40. The value of the life estates granted to the five children born after the death of the donor was $ 83,466.81 and the value of the remainder interests limited thereon was $ 34,639.69. In the estate tax return the petitioner did not include the value of these life estates or remainder interests in the gross estate of the decedent.

OPINION.

At the hearing, counsel for petitioner conceded that respondent did not err in including the value of the life estate of the decedent's five children in decedent's gross estate for purposes of determining the estate tax. Thus, the only remaining error assigned1951 U.S. Tax Ct. LEXIS 229">*234 is the inclusion of the value of the remainder interests limited in favor of the issue of these five children. Petitioner contends that the provision in which decedent attempted to appoint remainder interests in favor of the issue of the five children born after the death of the donor was void because it violated the Pennsylvania rule against perpetuities and that, therefore, the power to appoint these remainder interests was not "exercised" within the meaning of section 403 (d) (3) of the Revenue Act of 1942.

The respondent contends that the petitioner has not established that the remainders to the issue of the five children born after the death of the donor are void under the Pennsylvania rule against perpetuities. In support of this contention, he argues that the determination of the Orphans' Court of Philadelphia County declaring the remainders void should not be given weight because the decree was rendered in a non-adversary proceeding. It would appear that the proceeding was non-adversary and, in such circumstances, it has been held that the decree rendered therein is not binding upon us. Tatem Wofford, 5 T.C. 1152; Estate of Mary Clare Milner, 6 T.C. 874.1951 U.S. Tax Ct. LEXIS 229">*235 But be that as it may, after a review of the law of Pennsylvania it is our considered opinion that the local court's determination that the rule against perpetuities was violated and the remainders were, therefore, void was a correct interpretation of the then existent law of Pennsylvania.

Respondent does not deny that the issue must be resolved by applying the law of Pennsylvania. The donor was a domiciliary of Pennsylvania and the appointive estate consisted of personalty. Restatement, Conflict of Laws (1934), sec. 284, 49 C. J. 1298. Legg's Estate v. Commissioner, 114 F.2d 760.

In Pennsylvania, like most other states, the permissible period for the rule against perpetuities is the same as that evolved at common 16 T.C. 743">*746 law, i. e., a life or lives in being and 21 years, allowing for the period of gestation. In re Warren's Estate, 320 Pa. 112">320 Pa. 112, 182 A. 396">182 A. 396; Estate of Gertrude Bucknell Day, 44 B. T. A. 524. Any limitation or condition which may possibly take away or suspend the absolute power of alienation beyond the permissible period is void. ¹In re Lilley's Estate, 272 Pa. 143">272 Pa. 143, 116 A. 392">116 A. 392;1951 U.S. Tax Ct. LEXIS 229">*236 In re Wright's Estate, 348 Pa. 76">348 Pa. 76, 34 A.2d 57. Although the decisions in the various jurisdictions are not all in harmony, the Pennsylvania courts appear to follow the rule that in the case of a general testamentary power of appointment the remoteness of the appointed estate is measured from the time of the creation of the power. Gray, The Rule Against Perpetuities (4th ed.), secs. 526, 526.1, 526.2, 963; Lawrence's Estate, 136 Pa. 354">136 Pa. 354, 20 A. 521">20 A. 521. Furthermore, it is the fact, not the possibility, that rules, i. e., if the appointment as actually made does not violate the rule, such appointment is not rendered void merely because the donee might have appointed in a manner too remote. 320 Pa. 112">In re Warren's Estate, supra;Estate of Gertrude Bucknell Day, supra.In addition, the determination of the validity of the appointment depends upon the facts as they actually exist at the time the appointment is made, and not possibilities. 320 Pa. 112">In re Warren's Estate, supra;Estate of Gertrude Bucknell Day, supra;1951 U.S. Tax Ct. LEXIS 229">*237 41 Am. Jur., Perpetuities and Restraints on Alienation, sec. 37.

Respondent argues that under the facts as stipulated and found in this case, it cannot be established that the remainders to the issue of the five children born after the death of the donor are void, because some or all of them may have had issue born prior to the death of decedent and, if so, the remainders to these issue would have vested at the time of the decedent's death which occurred within the permissible period.

It is true that issue born prior to the death of the decedent would become vested with a remainder interest immediately upon the death of the decedent and respondent correctly argues that, therefore, their remainder interest1951 U.S. Tax Ct. LEXIS 229">*238 would have "vested" within the permissible period. However, respondent is in error when he concludes that for this reason the rule against perpetuities would not have been violated. The remainder interest that vests in such issue at the death of decedent is not vested to a degree sufficient to satisfy the rule against perpetuities. In re Lockhart's Estate, 306 Pa. 394">306 Pa. 394, 159 A. 874">159 A. 874; In re Boyd's Estate, 199 Pa. 487">199 Pa. 487, 49 A. 297">49 A. 297; Restatement of Property (1944) Vol. 4, sec. 371; Simes, Law of Future Interests, 1936, sec. 537, 41 Am. Jur., supra, sec. 52. See also Appeal of Mifflin, 121 Pa. 205">121 Pa. 205, 15 A. 525">15 A. 525. Such a remainder interest is not indefeasibly vested, or even vested subject 16 T.C. 743">*747 to complete defeasance. Instead, it is merely vested subject to open. Restatement of Property (1936) Vol. 2, sec. 157. These remainder interests were limited to eight different classes, i. e., the issue of the eight children. Upon the death of the decedent in the case of issue born prior thereto or at birth in the case of issue born after the decedent's1951 U.S. Tax Ct. LEXIS 229">*239 death, an estate in remainder vested in that issue but this estate was subject to open and let in other members of the class. That is, as other issue were born to that parent they too would share in the estate. Wetherill's Estate, 214 Pa. 150">214 Pa. 150; Restatement of Property (1936) Vol. 2, sec. 157. As explained in 214 Pa. 150">Wetherill's Estate, supra, at p. 153, "where an estate is given to a life tenant, with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children * * *."

The remainder interest limited to any of the classes in the instant case will continue to possess this insufficient degree of vestedness until the capacity of that class to increase its membership is ended, that is, until the parent in question dies, for until that event the parent may continue to have issue who would share in the estate. In the case of the five children born after the death of the donor it is possible that this event will not occur before the termination of the permissible period of the rule against perpetuities. The decedent or any of the three children born1951 U.S. Tax Ct. LEXIS 229">*240 during the lifetime of the donor may be selected as the measuring life for purposes of measuring the permissible period. In re Friday's Estate, 313 Pa. 328">313 Pa. 328, 170 A. 123">170 A. 123, 41 Am. Jur., Perpetuities and Restraints on Alienation, sec. 14. But regardless of which of such lives we choose, the possibility remains that the death of one or all of the five children born after the death of the donor may not occur until a time later than 21 years after termination of such life. And since the rule against perpetuities requires that the capacity of each of these classes to increase shall be certain to end by the end of the permissible period, and invalidates the entire limitation of the remainder to such a class if this requirement is not met ( In re Lockhart's Estate, 306 Pa. 394">306 Pa. 394, 159 A. 874">159 A. 874; In re Boyd's Estate, 199 Pa. 487">199 Pa. 487, 49 A. 297">49 A. 297; Restatement of Property (1936) Vol. 4, sec. 371; Simes, Law of Future Interests, 1936, sec. 537; 41 Am. Jur., supra, sec. 52; see also Appeal of Mifflin, 121 Pa. 205">121 Pa. 205, 15 A. 525">15 A. 525)1951 U.S. Tax Ct. LEXIS 229">*241 it follows that the limitation of the remainder in favor of the issue of these five children violated the rule against perpetuities and is void regardless of whether any such issue was born during the lifetime of the decedent.²

Respondent further argues that even if these remainder interests were void, the power of appointment over them was nevertheless 16 T.C. 743">*748 exercised within the meaning of section 403 (d) (3) of the Revenue Act of 1942. Section 811 (f) of the Internal Revenue Code, as amended by the Revenue Act of 1942, provides for the inclusion in the gross estate of a decedent of the value of any property with respect to which the decedent has at the time of his death the power of appointment. This broad provision is narrowed by section 403 (d) of the Revenue Act of 1942, as amended, which1951 U.S. Tax Ct. LEXIS 229">*242 establishes several exceptions to section 811 (f). In section 403 (d) (3) ³ a power of appointment created before the date of the enactment of the Revenue Act of 1942 is excepted from section 811 (f) if the decedent dies before July 1, 1947 (extended by subsequent amendments) and the "power is not exercised."

1951 U.S. Tax Ct. LEXIS 229">*243 The requirement relating to critical dates is satisfied by the facts of the instant case. Respondent contends, however, that the exception does not apply because the power was "exercised." He argues that there should be included within the extension of the term "exercised" an appointment which, as here, fails because of a violation of the applicable rule against perpetuities. Respondent would have us hold that an appointment is a valid exercise within the meaning of section 403 (d) (3) regardless of its validity under the applicable local law.

Respondent does not cite and we have not found any authority to support this strained interpretation of the word "exercised" as that word is used in section 403 (d) (3). Wilson v. Kraemer (D. C.Conn.) July 18, 1950, relied on by respondent, is a decision of the United States District Court involving an appointment valid under the applicable local law. The beneficiaries elected to take under the will of a donor rather than under the appointment of the donee. The holding that the decedent in that case "exercised" the power of appointment is no authority for the interpretation respondent seeks here.

In Wilson v. Kraemer, supra1951 U.S. Tax Ct. LEXIS 229">*244 , the appointment of the donee constituted a valid, legally significant act by which the title to property would have passed were it not for the affirmative action of the 16 T.C. 743">*749 appointees. Until that affirmative action was taken, the appointment remained a legally effective act. But in the instant case the attempt to appoint was not merely an ineffective act; it was a complete nullity which from its very inception was devoid of legal significance. Furthermore, this act was void not because of a rule of law peculiar to the particular locality but because of a rule of property law firmly established in the common law and followed in numerous common law jurisdictions. 41 Am. Jur., supra, sec. 52; Restatement of Property (1944) Vol. 4, sec. 371.

Perhaps, as explained by the court in Wilson v. Kraemer, supra, Congress in drafting the exception in the 1942 amendment did not intend to restrict the meaning of the word "exercise" so as to exclude a valid appointment subsequently rendered ineffective by the refusal of the beneficiary to take under the appointment. Even so, we find no substantial grounds either in the reasoning of the court in Wilson v. Kraemer, supra1951 U.S. Tax Ct. LEXIS 229">*245 , or in the legislative history of the Act for concluding that the drafters intended to include a void appointment such as we have here within the meaning of the word "exercise." We do not feel justified in such circumstances in concluding that Congress intended either to make a void act valid for tax purposes or to levy a tax on an estate because of a decedent's mere gesture possessing no legal significance. See John S. Montgomery, et al., Executors, 17 B. T. A. 491. On the contrary, such a conclusion would not be consistent with the report ⁴ accompanying the 1942 Revenue Act in which the Committee on Ways and Means defined a power of appointment as "an authority to do some act in relation to property which the owner, granting such power, might himself do." Certainly a void appointment that is a legal nullity from its very inception and, therefore, cannot affect a disposition of property is not an exercise of the authority to do some act in relation to property.

1951 U.S. Tax Ct. LEXIS 229">*246 Decision will be entered under Rule 50.