cut in half or more when the time for distribution arrived. I therefore find as a fact that it is impossible to ascertain the amount of the residuary bequest to charities as of the date of the decedent's death.
The plaintiff's real contention is that, since the interest of the charities is vested (subject only to be divested or reduced upon certain contingencies), it is incumbent upon the government to show to what extent it will be reduced, and, upon failure to make such showing, the whole deduction should be allowed. Parenthetically, the plaintiff has not been quite consistent in this because he has already diminished his claim for deduction by $25,000, allowing $5,000 for each of the living daughters. The government contends that the charities have a contingent interest only, and that under Humes v. United States, 276 U.S. 487, 48 S. Ct. 347, 348, 72 L. Ed. 667, no deduction can be allowed.
There is no possible doubt that interest of the charities was vested, subject to be divested in part at least on the happening of contingencies. See Wheaton Coal Company v. Harris, 288 Pa. 294, 135 A. 637; Marshall's Estate, 262 Pa. 145, 105 A. 63; Neel's Estate, 252 Pa. 394, 97 A. 502.
It does not follow, however, that the plaintiff can claim the deduction. Questions of vested or contingent may be of the greatest importance in determining the alienability of the remainder or its liability to be subjected to claims of creditors, but we are here construing a taxing statute and determining whether or not a deduction is allowable. The deduction is of "The amount of all bequests," etc. As the court said in Humes v. United States, supra: "But the fundamental question in the case at bar is * * * what construction shall be given to a statute. Did Congress, in providing for the determination of the net estate taxable, intend that a deduction should be made for a contingency the actual value of which cannot be determined from any known data?" It happened that, in the Humes Case, the remainder was a contingent one, but the point that the court emphasized is that the controlling question is the uncertainty and unascertainability of the amount claimed, and there is just as much uncertainty of amount involved in a vested remainder subject to be divested as in one which is contingent.
The burden of proof is always upon the taxpayer claiming an exemption. Statutes allowing exemptions from taxation to charities are of course construed liberally in favor of the exemption, but that does not affect the rule that one claiming a deduction must be able to show, with reasonable certainty at least, the amount which he claims. In Ithaca Trust Company v. United States, 279 U.S. 151, 49 S. Ct. 291, 73 L. Ed. 647, while the amount by which the deduction might be diminished could not be ascertained with absolute certainty, it was possible to ascertain it with reasonable exactness.
If, as the plaintiffs contend, the vested character of the remainder controls, it can readily be seen where it would lead. For example, it is well settled in Pennsylvania that a remainder, though subject to be wholly divested by the exercise of power of appointment given the life tenant, may, none the less, be a vested remainder. Again, under a will, the birth or survival of a single child may operate to wipe out an entire remainder in terest and yet not affect its character as vested. These considerations make plain the necessity of adhering closely to the policy of Humes v. United States, supra; namely, that no deduction can be allowed the amount of which cannot be ascertained at the testator's death with reasonable accuracy. This case happens to be one in which, in view of the large amount of the residuary estate, the small size of the contingent bequests and the age of the parties, the percentage of error in any guess at the amount which will go to charity is likely to be small, but the fact that such cases will arise does not call for encroachment upon the plain policy of the law.
I therefore conclude as matter of law that the deduction was properly disallowed, for the reason that the residuary bequests to charity have no ascertainable value as of the date of the decedent's death.
I affirm the defendant's points for charge that under all the law and evidence the verdict must be in favor of the defendant, and deny the plaintiff's point, allowing exceptions to the plaintiff.
I find generally for the defendant.
Judgment may be entered accordingly.
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