concurrence">MuRdock,

concurring: I agree with the results reached in this case and in the case of Bessie B. Jones, promulgated this day. But I want to deny a possible inference from these cases that I was ever of the opinion that a beneficiary had to have a present vested interest as opposed to a contingent interest in order to be the kind of a beneficiary meant by section 219 (g). Furthermore, this question was not decided in Emma Louise Smith, 23 B. T. A. 631.

Eugene W. Stetson is a beneficiary under the trust instrument, inasmuch as it provides that in case his wife predeceases him “ he may cancel and terminate this agreement by an instrument, in writing, duly executed and acknowledged, and filed with the Trustee or Trustees then acting, and upon such termination and cancellation, the said husband shall be entitled to receive the corpus of the trust fund and any undistributed income, to hold and dispose of absolutely for his own use.” This provision is somewhat contradictory, but nevertheless it gave the husband the corpus and undistributed income of the trust fund under certain contingencies. The case of Emma Louise Smith v. Commissioner, 59 Fed. (2d) 56, is in point. The court there took the view that Emelius W. Smith, the husband, was a beneficiary under the trust instrument because the statute of distribution of Massachusetts was made use of in the trust instrument to define a class of persons of which the husband would be one upon the happening of a contingency named in the trust instrument. This case reverses the Division decision of the Board mentioned above, but it does not indicate a disagreement between the court and the Board on the question of whether or not the word “ beneficiary ” in section 219 (g) -includes one having only a contingent interest. The Division decision in the Smith case held that Emelius was not a beneficiary at all under the trust instrument, but would take, if ever, by virtue of the statute of distribution of Massachusetts. The opinion did not distinguish between beneficiaries having a vested interest and those having a contingent interest, but distinguished between those who were presently beneficiaries and those who were presently not beneficiaries at all. The original Division decision in the present case was based upon a sentence from the opinion in the Smith case, which, no doubt, was somewhat misleading when taken from its context. In any event, it was given an application in the *176original decision in this case which its use in the Smith case did not justify. The Bromley case is on another point entirely.

SteRNíiageN, Love, and Goodeigh agree with this concurring opinion.

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