not spelled out specifically. "Medical care" might be thought by a meticulous bank lawyer to be limited to the field of internal medicine rather than surgery, or to exclude nursing care or drugs or apparatus such as a wheel chair or cervical collar. "Hospitalization" might be limited to institutionalized care, to the exclusion of nursing care in the patient's own home. Yet all these matters relate to health, or are incidental thereto.
In short, there seem to be legitimate reasons for using a customary catchall clause (not so devastatingly broad, of course, as the familiar "or otherwise") to make sure that other items of the same sort, and properly includible, though not specifically enumerated, were not ignored or excluded. The clause has a proper function from the standpoint of draftmanship which should not be penalized by tax consequences.
We therefore conclude that the trustees' power of invasion is limited by a suitable ascertainable standard relating to the health, support, or maintenance of the decedent, and that hence such power is not a general power as defined in § 2041, and the trust property is not includible in decedent's estate. Judgment is therefore rendered for the plaintiffs on the main question.
As to funeral expenses, it seems clear that these are deductible under the normal procedure provided in 26 U.S.C. § 2053 (a)(2).
It is immaterial that item FOURTH (c) provides that "At the death of my wife, after payment of all funeral expenses, said [trustee is empowered] to distribute the balance of such fund as it may then exist, to my son . . . and my daughter . . . share and share alike." This incidental reference to funeral expenses does not make them a primary obligation of the trust so as to disqualify them for the usual deduction in the decedent wife's estate. Just as a tort-feasor is not entitled to collateral benefit if the injured party's hospital expenses are paid by an employer or relative,
the Government cannot rely on this provision in the husband's will to defeat the normal deduction in the wife's estate.
Disputes as to valuation of the trust assets, we are advised, have been settled by agreement of the parties.
Judgment is therefore entered for plaintiffs, the amount to be computed by the parties and submitted to the Court pursuant to paragraph 14 of the Stipulation.
AND NOW, this 19th day of April, 1967, upon consideration of cross motions for summary judgment, after trial and argument,
IT IS ORDERED that plaintiffs' motion for summary judgment be and the same hereby is granted; and that defendant's motion for summary judgment be and the same is hereby denied; and that
Judgment is entered in favor of plaintiffs, Horace S. Miller, Jr., and Isabel M. Campbell, co-executors of the Estate of Isabella Steel Miller, deceased, and against the defendant, United States of America, in an amount to be computed by the parties and submitted to the Court, approximately in the amount of $23,526.59, together with costs and interest from June 10, 1965.