3 T.C. 464">*464 Petitioner seeks redetermination of a deficiency in estate tax of $ 3,028.27 resulting from the disallowance by respondent of deductions from the gross estate of petitioner's decedent for residual bequests to charitable and educational institutions.

FINDINGS OF FACT.

The parties have stipulated certain of the facts, which we hereby find accordingly. Facts otherwise found from the record and a summary of the stipulated facts are as follows:

Petitioner Joseph Wiggin, administrator of the estate of Charles H. Wiggin, deceased, filed the estate tax return here in question with the collector of internal revenue for the district of Massachusetts.

1944 U.S. Tax Ct. LEXIS 169">*170 The decedent died on November 24, 1940. His duly probated will, after making minor bequests not here important, provided that the 3 T.C. 464">*465 residue of his property, real and personal, should be held in trust, the income thereof to be paid to his wife for life and on her death the entire proceeds to be distributed to certain religious, charitable, or educational institutions. It provided, however, that the trustees were to apply not only the income for his wife's benefit during her life, but also "so much of the principal as in their judgment is necessary to the comfort and support of my wife, Jennie M. Wiggin, during her life."

Jennie M. Wiggin was born June 12, 1862. At the time of her husband's death she was 78 years old. She died on November 4, 1941. At the time of her death the administration proceedings on the estate of Charles H. Wiggin had not yet been completed and the residue of his estate had not yet been delivered to the trustees named in his will.

The gross estate of Charles H. Wiggin at the time of his death was valued at $ 94,216.09. His debts and the funeral and administration expenses totaled $ 5,686.39. The value of the specific bequests made in his will aggregated1944 U.S. Tax Ct. LEXIS 169">*171 $ 1,267.

Jennie M. Wiggin had no children or dependents. After her husband's death she continued to live in the same house she and her husband had occupied during his life. Her only separate estate was a savings deposit of approximately $ 5,000. Due to her advanced age and ill health, Mrs. Wiggin was unable to engage in many activities. Her hearing and eyesight were poor. While not crippled, she was unable to walk outdoors and spent most of her time at home sitting in a chair. For amusement she frequently went for automobile rides in a rented car. Her principal expenses were salaries of people to assist her in the house, charges for automobile rides, food, laundry, medical bills, and miscellaneous household expenses.

Her husband had been a retired railway employee and they lived a comfortable but unpretentious life, being able to live within his income and saving a part thereof.

During the 58-month period from January 1, 1936, to October 31, 1940, the living expenses of decedent and Mrs. Wiggin averaged $ 3,823.68 per year. During the same period decedent's income averaged $ 4,864.80 per year, including a $ 60 per month pension. The investment income averaged $ 4,144.80 per1944 U.S. Tax Ct. LEXIS 169">*172 year.

The administrator of decedent's estate received income at the rate of $ 4,475.64 per year for the 29 months succeeding his death. It is stipulated that:

The amount of money required to provide for the comfort and support of said Jennie M. Wiggin, between the date of her husband's death, and the date of her own death [about 49 weeks], in the manner and to the extent to which she had been accustomed to be maintained prior to her husband's death, did not exceed the amount of the income derived from her husband's estate during that period. During that period the executor [sic] of her husband's estate paid to her, or 3 T.C. 464">*466 for her account out of the income of the estate, approximately $ 3,600.00 to provide for her living expenses.

In addition, the administrator paid $ 359.64 for real property taxes and $ 390.47 for state and Federal income taxes for the year 1941. During her last illness, for which she was treated in a hospital for approximately one month, Mrs. Wiggin had the care of three special nurses each day, the salary paid to whom was $ 431. During the same period $ 60 was paid to each of the two personal servants, $ 124 to doctors, and $ 241.20 for hospital 1944 U.S. Tax Ct. LEXIS 169">*173 care, laboratory analysis, and medication, a total of $ 916.20.

It is impossible to compute as of the date of his death the values of the remainders bequeathed to charities by decedent.

OPINION.

The disposition of this case appears to be dictated by , and particularly by certain of the language there employed. It is first apparent that in dealing with a claim for deduction from gross estate, determination of the value of a charitable bequest "or, put another way, * * * the extent to which the widow would divert the corpus from the charities" must be measured as of the date of decedent's death. "The limit of permissible contingencies has been blocked out * * * in Treasury Regulations which provide that * * * the charitable bequest, to be deductible, must have, at the testator's death, a value 'presently ascertainable * * *.'" Secondly, the regulations provide "further, to the extent that there is a power in a private donee or trustee to divert the property from the charity, 'deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of 1944 U.S. Tax Ct. LEXIS 169">*174 such power.'"

As to these requirements the Court comments, "These regulations are appropriate implementations of § 303 (a) (3), and, having been in effect under successive reenactments of that provision, define the framework of the inquiry in cases of this sort."

Applying those tests to the present situation it is evident, first, that the death of the life beneficiary within a year after that of decedent is a circumstance which could not have been foreseen as of the valuation date, and hence is not an element which may be taken into account in attempting to value the charitable remainder. . Second, the power in the private trustee to divert the property from the charity requires that only that portion exempt from the exercise of the power may be considered deductible. Since there was no effort to limit the legal power of the trustee here even to the extent of confining it to the standard of living to which decedent's wife had previously been accustomed, cf. 3 T.C. 464">*467 , the most that can be regarded as exempt from the inroads 1944 U.S. Tax Ct. LEXIS 169">*175 of an invasion of corpus is that portion of the principal which can be treated with certainty as beyond the possible needs for comfortable maintenance of a beneficiary during an indeterminate lifetime under unforeseeable circumstances.

But we are cautioned that "Congress and the Treasury require that a highly reliable appraisal of the amount that charity will receive be available, and made, at the death of the testator. Rough guesses, approximations, or even the relatively accurate valuations on which the market place might be willing to act are not sufficient." Bearing in mind that during the period by which decedent's wife survived him amounts were expended which, if they did not exceed, at least approximated the free income which the estate produced, it would easily have been possible that over a period of years the corpus might be radically diminished, if not entirely dissipated. Cf. ; affd. (C. C. A., 9th Cir.), . At least there was no such generous leeway as existed in the Merchants National Bank case. And, certainly, nothing like the reliable appraisal1944 U.S. Tax Ct. LEXIS 169">*176 called for could be made as of the testator's death which would warrant the conclusion that any specific amount of the gross estate was exempted with certainty from the exercise of the trustee's power to invade and hence was inevitably destined for the charitable legatees. We think respondent's disallowance of the deduction must be sustained.

Decision will be entered for respondent.