It is clear that Rose's interest in the trust does not qualify for the marital deduction under the above provisions. Upon Rose's death her interest in the trust will terminate and the property in the trust will pass from the decedent to Isadore's sons, who will thereafter have absolute ownership of their respective shares of the property to possess and enjoy as they please.

Petitioner claims, however, the present worth of a life income interest can qualify for the marital deduction under section 2056(b)(5), citing Gelb v. Commissioner, 298 F.2d 544 (C.A. 2, 1962), and Citizens National Bank of Evansville v. United States, 359 F.2d 817">359 F.2d 817 (C.A. 7, 1966), in support thereof. Section 2056(b)(5)³ provides generally that in the case of an interest in property passing from the decedent, if 57 T.C. 817">*822 1972 U.S. Tax Ct. LEXIS 159">*170 his surviving spouse is entitled for life to all the income from the entire interest, or all the income from a specific portion thereof, payable at least annually, with the power in the spouse, exercisable by such spouse alone and in all events, to appoint the entire interest or such specific portion to herself or her estate, such interest in property so passing will, generally speaking, qualify for the marital deduction.

1972 U.S. Tax Ct. LEXIS 159">*171 It is clear that Rose's life income interest in the trust does not qualify for the marital deduction under this provision. Under the terms of Isadore's will Rose is not entitled to all the income from the entire trust or from any specific portion thereof; she is entitled to receive $ 100 per week for life from the trust. This is to be paid from any income of the trust, or from the corpus if the income is not sufficient, but any income in excess of enough to pay Rose $ 100 per week would be accumulated and distributed to the sons on Rose's death.

Furthermore, Rose has no power to appoint the entire or any specific portion of the interest passing to her under decedent's will to herself or to her estate. The will is silent as to any power of Rose to appoint any part of the trust property from whence she derives the life income; in fact, the will itself directs that it shall be distributed to the sons on Rose's death. And the fact that the principal of the trust could be invaded if necessary to provide Rose with $ 100 per week does not expand her life income interest to include a power of appointment over the trust principal. The trustees and not Rose had administrative control over1972 U.S. Tax Ct. LEXIS 159">*172 the trust, see Estate of Schildkraut v. Commissioner, 368 F.2d 40">368 F.2d 40 (C.A. 2, 1966); United States v. First Nat. Trust & Sav. Bank of San Diego, 335 F.2d 107">335 F.2d 107 (C.A. 9, 1964); and the power to invade principal was not exercisable "in all events" but only if necessary to provide Rose with the specified monthly payments. In addition there are numerous cases that have held a widow's power to consume is not broad enough to allow her to appoint the corpus to herself as the owner, even though there are only limited restraints on her control over the property. E.g., 335 F.2d 107">United States v. First Nat. Trust & Sav. Bank of San Diego, supra;May's Estate v. Commissioner, 283 F.2d 853">283 F.2d 853 (C.A. 2, 1960); Pipe's Estate v. Commissioner, 241 F.2d 210">241 F.2d 210 (C.A. 2, 1957). Pennsylvania law is in accord with these cases, Chestnut v. Chestnut, 300 Pa. 146">300 Pa. 146, 151 A. 339 (1930), as are the Federal court decisions from the Third Circuit; Hoffman v. McGinnes, 277 F.2d 598">277 F.2d 5981972 U.S. Tax Ct. LEXIS 159">*173 (C.A. 3, 1960); Commissioner v. Ellis' Estate, 252 F.2d 109">252 F.2d 109 (C.A. 3, 1958). Where the right to consumption of trust principal is limited, as it is in this case, there is no general power of appointment.

Suffice it to point out that in both Gelb and Citizens National Bank of Evansville, relied upon by petitioner, the surviving spouses had a power of appointment, which Rose does not have here. We conclude 57 T.C. 817">*823 that Rose's interest in the trust does not qualify for the marital deduction.

Petitioner's alternative argument, that the commuted value of the support and maintenance payments to decedent's wife are deductible from the gross estate as claims against the estate under section 2053⁴ is also untenable. For the value of those payments to be deductible, being founded on a promise or agreement, they must have been contracted for "an adequate and full consideration in money or money's worth" as required by section 2053(c)(1)(A). The payments involved do not meet that requirement under Federal law.

1972 U.S. Tax Ct. LEXIS 159">*174 While it may be true that under Pennsylvania law the widow who is to receive payments under a decedent's will precisely in the amounts provided for in an antenuptial agreement is a creditor of the decedent's estate rather than a legatee under the will, see In re Estate of Zeitchick, 426 Pa. 171">426 Pa. 171, 231 A.2d 131">231 A.2d 131 (1967); In re Coane's Estate, 310 Pa. 138">310 Pa. 138, 165 A. 2 (1933); this is not sufficient to meet the requirements of section 2053(c)(1)(A). Although the terms of an instrument and applicable State law must be considered to determine the nature of the interests created, the Federal revenue laws determine whether the interest or rights that have been created are subject to the Federal estate tax or may be deducted in arriving at the taxable estate for Federal estate tax purposes. Helvering v. Stuart, 317 U.S. 154">317 U.S. 154 (1942); Estate of Wilhelmina L. Benjamin, 44 T.C. 598">44 T.C. 598 (1965).

Section 2053(e) refers to section 2043(b) for provisions that relinquishment of marital rights will not be deemed a consideration in money or money's worth. 1972 U.S. Tax Ct. LEXIS 159">*175 Section 2043(b) provides as follows:

(b) For purposes of this chapter, a relinquishment or promised relinquishment of dower or curtesy, or of a statutory estate created in lieu of dower or curtesy, 57 T.C. 817">*824 or of other marital rights in the decedent's property or estate, shall not be considered to any extent a consideration "in money or money's worth." ⁵

The applicability of section 2043(b) of the 1954 Code and its predecessor, section 812(b) of the 1939 Code, has been both expanded and limited by various court decisions and revenue rulings since the provisions therein were first enacted as section 804 of the Revenue Act of 1932. For example, in Merrill v. Fahs, 324 U.S. 308">324 U.S. 308, it was deemed to be incorporated into the gift tax law even though no such provision appeared in the gift tax statute; in Harris v. Commissioner, 340 U.S. 106">340 U.S. 106,1972 U.S. Tax Ct. LEXIS 159">*176 it was held not to apply in a gift tax case where the relinquishment of marital rights in property was founded in a settlement agreement incident to a divorce, which theory was extended into the estate tax field, at least with respect to claims against an estate in Estate of Myles C. Watson, 20 T.C. 386">20 T.C. 386, affd. 216 F.2d 941">216 F.2d 941 (C.A. 2, 1954); and in E.T. 19, 1946-2 C.B. 166, as updated and restated in Rev. Rul. 68-379, 1968-2 C.B. 414, the Commissioner of Internal Revenue has recognized that the relinquishment by a wife of "support rights," as contrasted with "inheritance rights" in an agreement incident to divorce constitutes a consideration in money or money's worth. Extensive discussions of the cases in which and theories upon which these extensions and limitations on the applicability of section 2043(b) have been made appear in two rather recent opinions of this Court, see Estate of Hubert Keller, 44 T.C. 851">44 T.C. 851, and Estate of Robert Rodger Glen, 45 T.C. 323">45 T.C. 323. There is no need to repeat those discussions1972 U.S. Tax Ct. LEXIS 159">*177 here because the facts in this case appear to represent a classic example of when section 2043(b) is applicable.

The purpose for the enactment of the provisions contained in section 2043(b) "was to eliminate a particular form of estate tax avoidance which involved the contractual conversion of a wife's dower (or other property rights she may have as surviving spouse) into a deductible claim against the gross estate." 45 T.C. 323">Estate of Robert Rodger Glen, supra at 333. Without intending any criticism of either the reason or motive of Isadore and Rose in entering into the antenuptial agreement here, if the value of Rose's payments may be deducted as a claim against Rubin's estate, the agreement would accomplish the very thing section 2043(b) is designed to prevent. Furthermore, the foundation for Rose's "claim" fits it squarely into the language of sections 2053(c)(1)(A) and 2043(b).

There can be no question that the payments to Rose Rubin were founded on a promise or agreement; the antenuptial agreement. Thus 57 T.C. 817">*825 any deduction for the value thereof as a claim against the estate is limited by section 2053(c)(1)(A) to the extent that it was contracted1972 U.S. Tax Ct. LEXIS 159">*178 bona fide and for an adequate consideration in money or money's worth. Inasmuch as section 2043(b) provides that relinquishment of dower or curtesy or of other marital rights in the decedent's property or estate shall not be considered to any extent consideration "in money or money's worth," we must determine just what Rose gave as consideration for her stipend. Petitioner argues that Rose relinquished her support rights, while respondent urges that she surrendered only her inheritance rights.

The antenuptial agreement first relates the intention of the parties to get married and then recites that it is the intention of Rose to waive, relinquish, and bar all her inchoate intestate and other rights or interests, either as wife or widow of decedent, in property then owned or thereafter acquired by decedent. Then, in consideration of the marriage and the covenants of Rose, decedent agreed to make the provision in his will, which he did make, "to provide for his intended wife in the event of his death." The provision for Rose was to commence only on the death of decedent. As consideration Rose covenanted that said payments shall be in lieu of all her rights to the real and personal1972 U.S. Tax Ct. LEXIS 159">*179 property of decedent then owned or thereafter acquired, "including all and any inchoate intestate rights, and rights as heir of any kind." She also released all her interest, rights, and claims in and to such property.

Clearly, in addition to agreeing to marry decedent, the only rights Rose surrendered were her interests in her prospective husband's estate as heir or surviving spouse. There was no mention of her rights to support during the marriage and prior to decedent's death. The rights relinquished were her rights to dower or curtesy, or a statutory estate created in lieu thereof, or other marital rights in the decedent's property or estate, which are specifically denied recognition as consideration in money or money's worth by section 2043(b), for the reasons set forth in Rev. Rul. 68-379, supra. Also, see Estate of Frances R. Pollard, 52 T.C. 741">52 T.C. 741 (1969); Latty v. Commissioner, 62 F.2d 952">62 F.2d 952 (C.A. 6, 1933).

From petitioner's brief, it appears that its argument concerns a surrender of support rights that Rose Rubin would have had as surviving spouse. The "support 1972 U.S. Tax Ct. LEXIS 159">*180 rights," the relinquishment of which has been held to constitute consideration in money or money's worth, are the support rights to which a wife is entitled during marriage and which she may relinquish in a settlement agreement incident to a divorce. Estate of Louis Fabrikant, 39 T.C. 714">39 T.C. 714. They do not refer to any rights a widow may claim as a result of her husband's death. 57 T.C. 817">*826 Furthermore, a widow has no support rights in her husband's estate. ⁶ Unlike divorce or legal separation, termination of a marriage by the husband's death never leaves the widow with support rights for the simple reason that the husband as an income-producing entity is no longer in existence. Consequently, upon the death of her spouse she is entitled to either her dower rights or, depending on whether the decedent dies testate, her statutory share or her share under the decedent's will. When she receives her share of the estate, that extinguishes her interest in the husband's estate regardless of whether she is able to support herself on that amount.

1972 U.S. Tax Ct. LEXIS 159">*181 In conclusion, we must find that Rose Rubin surrendered only her right to remain unmarried, plus her dower or inheritance rights in Isadore Rubin's estate, in exchange for her support allowance. Neither the promise of marriage, Commissioner v. Wemyss, 324 U.S. 303">324 U.S. 303 (1945), nor a surrender of dower or other statutory interest in the decedent's estate is consideration in "money or money's worth" as prescribed by sections 2043(b) and 2053(c)(1)(A). Empire Trust Co. v. Commissioner, 94 F.2d 307">94 F.2d 307 (C.A. 4, 1938); Estate of H. B. Hundley, 52 T.C. 495">52 T.C. 495 (1969). Therefore, Rose Rubin's allowance of $ 100 per week from the testamentary trust created by her husband's will does not constitute a claim against the estate which is deductible under section 2053(a)(3).

Decision will be entered for the respondent.