dissent">DisNet, /.,

dissenting: I am unable to agree with the majority opinion. My analysis of the pertinent language of the trust indenture convinces me that Alice Cheney Ferris did not possess the discretion upon which the majority opinion relies to give her an adverse interest. Though it is provided that it was the intent that she should use the trust income for the support and maintenance of herself and children, she was required to save Walter L. Ferris harmless from any obligation for the support of any of them and if she should fail to do so, trustee was required to pay from trust income and to Walter L. Ferris the amount of any obligations which he should be obliged to pay, including those incurred by the children. This in turn includes the minor child. In other words, the trustee had the duty first of all, it seems to me, to see that Walter L. Ferris was saved harmless from any obligation for the support of the children, including the minor child and including any obligations which such minor child might incur. Such obligations, of course, to be binding upon the parent-settlor would have to be those reasonably necessary considering the means and station in life of the parent. The record does not indicate such station in life nor the financial ability of the trustor. The trust income for the taxable year other than 20 percent payable to the petitioner was $6,254.98. In my opinion, under Douglas v. Willcuts, 296 U. S. 1, and Helvering v. Stuart, 317 U. S. 154, the entire trust income was taxable to petitioner, in the absence of any showing that his financial position and station in life would not have rendered him liable had the minor child incurred obligations which would have bound him in amounts equal to such trust income. The Stuart case indicates to me that we must consider not merely the amount actually used for the support of the minor child, but any amount which under the trust indenture might have been used for that purpose from trust income, and, observing from the language of the indenture that such trust income was to save the settlor harmless from obligation to support and maintain, among others, a minor child, it appears to me that the trust income, so far as we know from this record, was all subject to such call and therefore taxable to the settlor.

SteeNhageN, FIaRRON, and Ojpber, JJ., agree with this dissent.

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