Merchants National Bank of Boston v. Commissioner of Internal Revenue/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice JACKSON concurs, dissenting.

The Tax Court applied the correct rule of law in determining whether the gifts to charity were so uncertain as to disallow their deduction. That rule is that the deduction may be made if on the facts presented the amount of the charitable gifts are affected by 'no uncertainty appreciably greater than the general uncertainty that attends human affairs.' Ithaca Trust Co. v. United States, 279 U.S. 151, 154, 49 S.Ct. 291, 73 L.Ed. 647. In that event the standard fixed by the will is 'capable of being stated in definite terms of money.' Id., page 154 of 279 U.S., page 291 of 49 S.Ct. The mere possibility of invasion of the corpus is not enough to defeat the deduction. The Tax Court applied that test to these facts. In re Field's Estate, 45 B.T.A. 270, 273, 274. Where its findings are supported by substantial evidence they are conclusive. We may modify or reverse such a decision only if it is 'not in accordance with law.' 44 Stat. 110, 26 U.S.C. § 1141(c)(1), 26 U.S.C.A. Int.Rev.Code § 1141(c)(1). See Wilmington Trust Co. v. Helvering, 316 U.S. 164, 168, 62 S.Ct. 984, 986, 86 L.Ed. 1352. The discretion to pay to the wife such principal amounts as the trustee deems proper for her 'happiness' introduces of course an element of uncertainty beyond that which existed in the Ithaca Trust Co. case. There the trustee only had authority to withdraw from the principal and pay to the wife a sum 'necessary to suitably maintain her in as much comfort as she now enjoys.' But the frugality and conservatism of this New England corporate trustee, the habits and temperament of this sixty-seven year old lady, her scale of living, the nature of the investments-these facts might well make certain what on the face of the will might appear quite uncertain. We should let that factual determination of the Tax Court stand, even though we would decide differently were we the triers of fact. 

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