The opinion of the court was delivered by: WILLSON
This is a civil suit for the recovery of Federal estate taxes paid by the plaintiffs, William K. Frank and Robert J. Frank, executors under the will of their mother, Tinnie K. Frank, deceased, to the Collector of Internal Revenue at Pittsburgh, Pennsylvania. Plaintiffs seek to recover the sum of $ 59,092.76, with interest, which they paid on a deficiency assessment made by the Collector. The complaint was filed February 11, 1952. The crux of the issue to be decided is based on the averments in paragraph 9 of the complaint and answer. The case appeared on the non-jury list and when reached for trial, the parties agreed upon and introduced into evidence a written stipulation of the facts. In addition to the stipulation, plaintiffs offered the testimony of two witnesses and also introduced into evidence an exemplification of a record in the Orphans' Court of Allegheny County, Pennsylvania. The defendant bases his defense upon the facts as set forth in the stipulation.
There is thus presented for decision an actual controversy but based upon undisputed facts, leaving the issue to be decided one of law only. From the pleadings and oral and documentary evidence introduced, the major portion of which is the written stipulation of facts, I make the following
1. The plaintiffs, William K. Frank and Robert J. Frank, are the duly qualified and acting executors under the will of Tinnie K. Frank, deceased.
2. At all times from January 1, 1943 to November 11, 1952, the defendant, Stanley Granger, was a duly qualified and acting Collector of Internal Revenue for the Twenty-third Collection District of Pennsylvania. The defendant wad at the time this suit was filed, and has at all times since been, a resident of the Borough of Bridgeville, Allegheny County, in the Western District of Pennsylvania.
3. This is a suit of a civil nature arising under the laws of the United States of America and is brought for the recovery of internal revenue taxes collected from the plaintiffs by the defendant, Stanley Granger, Collector of Internal Revenue for the Twenty-third Collection District of Pennsylvania. The taxes involved in this suit are estate taxes and were assessed and collected under Title 26, Subtitle A, Chapter 3, Subchapters A and B, of the Internal Revenue Code, as amended; Title 26 U.S.C.A. § 800 et seq. The jurisdiction of this court is based upon Title 28 U.S.C.A. § 1340.
4. Tinnie K. Frank, the decedent above-named, a resident of Pittsburgh, Pennsylvania, died on June 1, 1945, leaving a last will and testament, dated December 8, 1938, with a codicil thereto dated October 30, 1943, which will and codicil were duly probated on June 11, 1945, and are now of record in the office of the Register of Wills for Allegheny County, Pennsylvania, in Will Book Volume 272, page 28.
5. In and by her said will, the decedent appointed the above-named plaintiffs, William K. Frank and Robert J. Frank, as the executors thereof. The said William K. Frank and Robert J. Frank duly qualified as such executors, and letters testamentary under the decedent's said will were issued to the said William K. Frank and Robert J. Frank by the said Register of Wills on June 11, 1945. At all times since June 11, 1945, the said William K. Frank and Robert J. Frank have been, and they now are, the duly qualified and acting executors under the decedent's said will.
6. On May 21, 1930, Isaac W. Frank, husband of the decedent, Tinnie K. Frank, executed a deed of trust in which he named the Bank of Pittsburgh, National Association, his sons, William K. Frank and Robert J. Frank, and his son-in-law, S. J. Anathan, as trustees. A copy of the deed of trust is Exhibit 'A' of the evidence and is referred to as the 'Isaac W. Frank Trust of 1930.'
7. Article 1 of the said deed of trust provides as follows:
'Said Trustees are authorized, empowered and directed:
'1. To collect, recover and receive the interest, income and dividends upon the said securities, moneys and investments, and, less the expense incident to the management of the trust:
'(a) To pay over annually in quarterly installments during my life the sum of Fifty Thousand Dollars ($ 50,000.00) to my wife, Tinnie Klee Frank, and should my wife survive me then after my death and during my said wife's life, the sum of Seventy-five thousand Dollars ($ 75,000.00) annually in quarterly installments to her, and the balance of said income during the life of my wife, and after her death all of said income, to my three children, namely, William K. Frank, Robert J. Frank and Bessie Frank Anathan, in equal shares for and during their respective natural lives.'
8. Article 2 of the said deed of trust provides that the trust shall continue until the death of all of the three children of Isaac W. Frank or until the youngest grandchild of Isaac W. Frank living at the time of the creation of the said trust attains the age of twenty-four years, whichever is later, at which time the trust shall cease and 'the principal thereof' shall be distributed to the issue respectively of the children of Isaac W. Frank, or, in default of all issue, to certain charitable and educational institutions, subject, however, to the discretionary provisions of Article 5. All of the three children of Isaac W. ...