In re the Estate of Holzleeter

This is an appeal from a pro forma order fixing the New York estate tax which disallowed a marital deduction although it had been allowed by a final determination of the Federal estate tax.

The question presented is whether, because of the execution by decedent and the surviving spouse of a joint and mutual will, the surviving spouse’s interest is terminable and therefore is ineligible for the marital deduction. Paragraph second of the will gives all of their property of whatever nature and kind “ unto the survivor of us forever.” Similar language has been held to indicate an absolute gift…