¶1Concurring Opinion
¶2I concur. The term, power of consumption, should not be used even in a qualified or restricted sense to describe any of decedent’s prerogatives in relation to the custodial property under the Uniform Gifts to Minors Act. The decedent father, during his lifetime, might have claimed that the principal and income irrevocably given to his son under the Uniform Gifts to Minors Act fulfilled his legal support obligations to his minor son. However, this possible claim is not a retention of the power to consume. If a father estab*120lishes an irrevocable trust as to principal and income for the benefit of a single child and specifically provides in creating the trust that the purpose of the trust is to fulfill his support obligations, there is no retention of a power to consume and the trust would be insulated from attack from a surviving widow claiming her statutory election rights. To the extent, if any, that the decedent father was obligated to support his son, there existed a debtor-creditor relationship between the father and the son. In effect, Edward Schwartz could have claimed that use of the custodial property for support extinguished a debt created by law. He had no other possible rights and had no other freedom so far as the use of the custodial property was concerned. How can the possible use of custodial funds to extinguish a specific legal debt to the named son in the gift be considered the power to consume which will defeat an inter vivos gift when a surviving spouse always takes subject to all debts of the decedent. If Edward Schwartz had never made the gift to his son under the Uniform Gifts to Minors Act and had died owing any payments of support for his son’s benefit, this obligation would, without question, be payable before computing the widow’s one-half share of the residuary estate. Widows, under the law, even when they elect against the will, do not take to the detriment of irrevocable inter vivos gifts to children or to any legal debts of the decedent. The decree is properly reversed.