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November 26, 1957

The BANK OF NEW YORK as trustee of a trust created by Mary Viva Brooke by agreement dated March 12, 1903, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: RYAN

This suit has been filed by plaintiff bank, as trustee of an inter-vivos trust created by Mary Viva Brooke by agreement dated march 12, 1903. The settlor died on December 5, 1944; she was then a British subject, and a resident of England. Her last will was duly admitted to probate in England. No ancillary proceedings were had in the United States. Plaintiff bank as trustee in possession of funds of the decedent filed a Federal Estate Tax Return on March 5, 1946. It reported a gross estate of $ 1,466.83, which, credited with the specific exemption of $ 2,000, was subject to no tax. Subsequently, upon audit an additional assessment was made; this suit seeks recovery in full of the amount ultimately collected on this assessment alleging it to have been erroneously assessed and wrongfully collected.

Plaintiff bank and the Government moved, after answer, for summary judgment (Rule 56, F.R.Civ.P., 28 U.S.C.A.). A stipulation as to certain facts has been filed. We find, upon examination of the papers now before us, that the following facts are not in issue.

The trust was executed prior to the decedent's marriage. She subsequently married and bore two children -- Cyril Brooke, born April 3, 1911 and Voctor Butler Brooke, born October 22, 1919.

 The trust was measured by decedent's life and the income was payable to her during her life. In so far as it is here material, it was provided that upon decedent's death the 'trust shall cease and the principal of the fund held in trust hereunder, in case she shall leave children, or issue of deceased children her surviving, shall pass absolutely to such child, children or issue of deceased children, and in such share or shares, as the party of the first part may by her last will and testament appoint and direct * * *'.

 At the date of decedent's death, December 5, 1944, the son Victor Butler was living, unmarried and without issue; the son Cyril had not been heard from for sometime, his whereabouts were unknown and he has not been heard of since that date.

 The decedent by her last will, dated May 22, 1943, attempted to exercise a power of appointment over the remainder of the trust under the 1903 agreement. The will made specific reference to this trust. We are here concerned only with paragraph '3' by which she attempted to bequeath one-half of 'the capital of the said Trust Fund and also all accumulations of income and current income' to her son Victor Butler, and if dead in equal shares per capita to his surviving issue, if any; and the income of the other half to her son Cyril during his life and thereafter the remainder of this half to her son Victor Butler, and if dead in equal shares per capita to his surviving issue. The decedent also provided 'that if my son Cyril of whom I have not heard for many years shall for a period of one year after my death fail to make his whereabouts known * * * and to claim the interest to which if living he would be entitled under the foregoing appointment he shall be deemed to have predeceased me * * *'.

 Following the death of the decedent, the plaintiff bank in 1946 filed suit in the Supreme Court of the State of New York, County of New York, for a judicial settlement of its account of the trust and for a construction of the trust and a direction as to whom the corpus of the trust should be paid. It was in that suit by judgment entered on August 12, 1948, adjudged that Cyril Brooke had predeceased his mother, Mary Viva Brooke, the decedent herein, that Victor Butler Brooke was the sole remainderman of the trust, and that the entire principal of the trust was payable to him absolutely and free of any trust.

 The decedent, prior to her death, also had established a trust which was administered in England. A proceeding was filed in Her Majesty's High Court of Justice, Chancery Division, London, England, following decedent's death for the judicial settlement of the account of the trustees of this trust. Here, there was entered on April 16, 1948 a judgment that Cyril Brooke did not survive his mother, Mary Viva Brooke.

 With these facts undisputed, the Court took under advisement the motion made by both plaintiff and defendant for summary judgment. It appeared that a factual issue was presented as to whether the son, Cyril, had predeceased his mother, the decedent herein. With the purpose of disposing of this issue without formal trial, the Court availed itself of the procedure outlined in Rule 56(d) and interrogated counsel. As a result, and with the cooperation of counsel, a formal trial was waived and not made necessary as to this factual issue.

 It was stipulated that the plaintiff bank might submit to the Court as evidence herein the four depositions of witnesses which were received in evidence by the Supreme Court of the State of New York in the proceeding instituted in that Court by the plaintiff bank; and, as to these witnesses, it was further stipulated that if they were called on the trial of this suit they would testify that they had heard nothing from Cyril Brooke since the date of the depositions. There was reserved, however, to the Government the right to object to these depositions and this testimony, solely upon the ground that it was immaterial and irrelevant; that there is no presumption of death applicable in this suit; that the evidence is insufficient in law and fact to raise any such presumption; and that the depositions and testimony have no probative value to establish the death of Cyril Brooke. The statement was made by Government counsel upon interrogation by the Court that it had no direct evidence and could offer none at a trial to show that Cyril Brooke had been heard from since the last date testified to in these depositions.

 It appears then that the one factual issue present is whether Cyril Brooke was living at the date of his mother's death on December 5, 1944, and that as to this issue all the available evidence has been received by stipulation.

 The four depositions received in evidence on these motions are of Victor Butler Brooke, Henry Thomas Wallace Bidwell, Francis Alexander Johnston and William Ernest Crabtree White.

 Victor Butler Brooke whose deposition was taken on May 21st, 1947, testified that:

 He was then 27 years of age; that he resided in Gloucester, England; that he was the son of Mary Viva Brooke; that there were two children, the issue of his parents, an elder brother Cyril and himself; that his father had been dead 22 or 23 years; that there were no other children; that his mother had died testate on December 5th, 1944 at Oxford; that 'I can't remember when and where I last saw my brother when and Brooke. I think it may have been when I was about 15 years of age, but I am by no means certain'; that he did not know where his brother then resided; that he could not remember when he last heard from his brother; that his mother had told him that Cyril was about 8 years older than he; that to his knowledge Cyril was not married; that he did not know what his brother's business was; that he had been told that 'after leaving Oxford he was going into the church, i.e. going for Holy Orders in the Church of England, but he abandoned that'; that he had not heard from his brother Cyril since his ...

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