The opinion of the court was delivered by: LEVET
In this action the plaintiffs seek to recover certain estate taxes. The case was tried before the court without a jury. The facts were stipulated.
After examining the stipulations, the pleadings, the briefs and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. The decedent, Fanny Sicher Cohn, died on September 8, 1960. Her Last Will and Testament was admitted to probate in the Surrogate's Court, New York County, and on September 29, 1960 Letters Testamentary were issued by the said court to the plaintiffs, Lillian Friedmann and Warren S. Davidson, as co-Executors. Said Lillian Friedmann and Warren S. Davidson continue to act in such capacity.
2. On or about November 17, 1961, the plaintiffs, as Executors of the estate of Fanny Sicher Cohn, filed a federal estate tax return and paid to the District Director of Internal Revenue, Manhattan, New York, the sum of $3,789.75, the amount of tax shown to be due on the return as filed.
3. By letter of September 11, 1962, the District Director proposed certain adjustments to the federal tax return which would result in a deficiency in the estate tax of $88,941.84.
4. The plaintiffs executed a waiver of restrictions on assessment and collection of the proposed deficiency, and on or about February 27, 1963 paid to the District Director an additional estate tax of $88,941.84, plus interest thereon of $6,522.40, or a total of $95,464.24.
5. On or about March 12, 1963, the plaintiffs filed with the District Director a claim for refund in the amount of $95,464.24.
6. On or about June 25, 1963, the plaintiffs filed with the District Director an "amended" claim for refund of additional estate tax of $7,779.30, allegedly arising out of the allegedly erroneous omission of deductions for certain administration expenses.
7. On March 31, 1930, the decedent, Fanny Sicher Cohn, as grantor, created an inter vivos trust by entering into a deed of trust and transferring to the named trustee certain assets listed in a schedule annexed to the deed of trust. A copy of said deed of trust was attached to the stipulation of facts and marked Exhibit 4.
8. Article II of the deed of trust provided in part:
"II. Out of the net income, as a first charge thereon, and also, if ever and so far as necessary, out of the principal, to pay to FANNY for and during the term of her lifetime, on the first day of each and every month, commencing with the payment on May 1, 1930 the sum of FIVE HUNDRED DOLLARS ($500)."
Various payments of the residue, if any, of the annual net income of the trust were provided for in the agreement.
9. Article X of the said trust agreement was as follows:
"FANNY hereby expressly reserves and retains to herself the right, as hereinafter expressly limited, at any time or times during her lifetime (1) to revoke, cancel and annul, in whole or in part, this Deed of Trust and the trusts and interests in property hereby created, and/or (2) to alter, annul or modify any one or more of the provisions of this Deed of Trust.
"The foregoing rights of revocation and/or modification shall be exercised by notice in writing, signed and acknowledged by FANNY in the manner then prescribed for deeds of New York realty, and delivered to the then acting TRUSTEE or TRUSTEES. But such notice of attempted revocation and/or modification shall be ineffectual and void UNLESS approved, in the manner and within the time hereinafter prescribed, by (1) said LOUISE LOTH SICHER and said DUDLEY F. SICHER,if both be then living, or (2) the survivor of said LOUISE LOTH SICHER and DUDLEY F. SICHER and also the then acting EXECUTOR or all the then acting EXECUTORS of that one of them who shall have died, or (3) after the death of both said LOUISE LOTH SICHER and said DUDLEY F. SICHER, by the respective then acting executor or all the then acting EXECUTORS of each of them and also each TRUSTEE (one or more) who may be then acting as TRUSTEE under this DEED OF TRUST.
"Such approval shall be in writing and duly acknowledged by each signer in the manner then prescribed for deeds of New York realty, and shall be delivered to each then acting TRUSTEE under this Deed of Trust, either simultaneously with FANNY'S notice of revocation or modification, so approved, or within not more than sixty (60) days after delivery of FANNY'S notice of revocation or modification to every then acting TRUSTEE.
"Any such notice of revocation shall, moreover, direct the disposition to be made of the trust principal and/or income or of the portion affected by such revocation; and the TRUSTEE, and/or his successor or successors, shall make, execute and deliver such instruments, if any, and make such transfers of property, as may be necessary or proper to carry such revocation into effect.
"No person shall have any right, interest or estate under this Deed of Trust except subject to the proper revocation, alteration or modification thereof by FANNY pursuant to the ...