accordance with the terms of the will. The instrument further provided as follows:
'4. We and each of us do hereby agree to and with each other to be bound by the terms of this agreement and hereby waive our respective rights to said funds and any and all share in said charitable bequests and any right we may now have or hereafter have to receive any portion of said funds heretofore devised to the said charities, on account of any illegality thereof. We further agree that the failure of any of the parties above mentioned to sign this agreement shall not relieve any of those signing this agreement from their obligation to turn over to the charities his or her share in said funds and we the undersigned do further assign, set-over and transfer unto the said charities each of our proportionate shares in said charitable bequests. We further agree that any award of any court resulting in the charitable bequests being declared invalid or inoperative, be forthwith transferred and assigned to said charity, it being our intent and purpose to ratify, republish and confirm the verbal understanding to and with each other agreeing to validate as far as possible the said charitable bequests. The parties to this agreement are cognizant and know that certain of the beneficiaries who are not parties to the agreement may not sign said agreement, but that said agreement shall remain open for the signature of any persons should they be either legatee, devisee or next of kin of Solomon Selig, deceased.'
18. The instrument dated August 2, 1943, is presently among the papers relating to testator's estate in the Orphans' Court of Philadelphia County, Pennsylvania, but the instrument bears no file mark of the Orphans' Court and no reference thereto is contained in the official records of that Court. Neither the instrument dated December 16, 1940, or the instrument dated August 2, 1943, was in existence when the adjudication of the Orphans' Court was made on April 5, 1940, and formed no part of the adjudication.
19. On February 12, 1945, the Commissioner of Internal Revenue notified plaintiffs by registered mail that their claim for refund was rejected in its entirety, assigning as grounds therefor the following:
'An examination of the record discloses the fact that the decedent was a resident of Pennsylvania and that his will was executed less than thirty days prior to his death. Under Pennsylvania law a charitable bequest made less than thirty days prior to the testator's death is void. There appears to be no valid residuary bequest into which the void bequest can fall and therefore no charitable deductions are allowable in respect to the bequests in question.'
20. This suit was filed on March 22, 1946.
Conclusions of Law.
1. This court has jurisdiction of the parties and the subject matter.
2. The date of death value, if any, of the charitable bequests was too uncertain and indefinite to permit any deduction therefor.
3. The charitable bequests were void under state law, not merely voidable.
4. The instruments executed by certain of the private beneficiaries on December 16, 1940, and August 2, 1943, did not constitute 'irrevocable disclaimers' within the meaning of Sectio812(d) of the Internal Revenue Code.
5. Any property or amounts which the charities may ultimately receive will be received as gifts from the private beneficiaries, not under the will of the testator.
6. Since at the testator's death the gifts intended for the charitable beneficiaries were void, the property vested instead in the private beneficiaries who were thereby empowered to divert the gifts from charitable to non-charitable purposes or objects. Therefore, the gifts are not deductible even though this power of diversion may never be exercised.
7. The charitable beneficiaries did not receive anything of value under the instruments, nor is there any certainty or assurance that they ever will.
8. The tax sought to be recovered by plaintiffs was properly assessed and collected.
9. The defendant is entitled to judgment dismissing plaintiffs' complaint with prejudice, together with costs of suit.
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