FORMAN, Circuit Judge.
This is an appeal by the defendant, United States of America (hereinafter appellant) from a summary judgment entered by the United States District Court for the Middle District of Pennsylvania on the motion of plaintiff, [478]*478Northeastern Pennsylvania Bank and Trust Company, Executor under the will of Clarence C. Young (hereinafter ap-pellee), in the amount of $17,574.45 with interest, and from the denial of appellant’s motion for summary judgment. Appellee’s suit alleged an improper rejection of a claimed marital deduction.
Decedent died testate on May 3, 1958 survived by his wife and four children. Paragraph 6 of decedent’s will1 provided for the bequest of one-half of the residue of the estate to appellee who was directed to pay out of income, and corpus if necessary, the sum of $300 per month to decedent’s wife until his youngest child reached eighteen years of age, after which appellee was directed to pay decedent’s wife $350 per month for the rest of her life. Paragraph 6 also provided that if decedent’s wife survived him, she would have the power, exercisable by will, to appoint to her estate, or to others, any or all of the principal of the trust remaining at the time of her death. Paragraph 11 2 recited that such stipends were in no event to be liable for any debts contracted by the survivor and were not to be liable to attachment or assignment, but were solely for the use, maintenance and support of the survivor.3 Paragraph 11 also indicated that income produced from the corpus of the trust which exceeds the monthly allotment is to be accumulated. Paragraph 124 of the will granted appellee the power to authorize payments over and above the monthly stipend up to $1500 in the event of a serious illness or financial emergency affecting the surviving spouse. Whether the figure of $1500 is in the aggregate or may be paid in each event is unclear.
[479]*479Decedent’s adjusted gross estate was $199,749.96. Appellee sought to qualify the maximum amount, one-half of that adjusted gross estate, $99,874.98, as a marital deduction in accordance with Sections 2056(c) (1) 5 and 2056(b) (5) 6 of the 1954 Internal Revenue Code. The value of the property passing outside the will, to the decedent’s spouse, $41,751.02, was combined on the estate tax return with the full value of the testamentary residuary trust, $69,245.85, to total $110,996.87. That portion of $110,996.-87 which constituted one-half of the adjusted gross estate, $99,874.98, was listed, as noted above, as qualifying for the marital deduction. Appellant eliminated the full value of the testamentary residuary trust from the claimed marital deduction and thus decreased the amount of the allowable marital deduction to $41,751.02. The deficiency in estate tax was paid, a claim for refund was disallowed, appellee filed suit for refund, and after motions for summary judgment were presented by both parties, the District Court ruled in favor of the appellee and granted the refund.7
The District Court did not, as proposed by appellee, conclude that the entire value of the trust corpus, $69,245.-85, could be considered for the marital deduction. Instead, it applied a Treasury Department actuarial formula to value the present worth of the surviving spouse’s monthly stipend. This formula produced a value of $63,663.43. This was added to $41,751.02, the value of the property passed to the surviving spouse outside the will, to total $105,414.45, an amount in excess of one-half of the decedent’s adjusted gross estate, $99,874.-98, the maximum allowable statutory marital deduction. The District Court thus concluded that appellee was entitled to the full marital deduction of $99,874.-98, and judgment was entered for $17,-574.45 plus interest, representing the tax found to have been unlawfully collected by appellant.
I
As the marital deduction provisions function today, under a trust arrangement such as the one involved herein, the entire corpus of the trust qualifies for inclusion in the estate tax return as part of the marital deduction if each of two prerequisites 8 are met: (1) the surviving spouse is entitled to all the income produced from the corpus for the remainder of the survivor’s life with (2) power in the survivor to appoint the entire corpus remaining at the time of the power’s exercise. If the survivor’s requisite relationship to the corpus bars the qualification of the entire corpus for the deduction, a part of the trust corpus will qualify for marital deduction status if the survivor is entitled to the income from a “specific portion” of the whole, whether there be a power to appoint the entire interest remaining at the time of the power’s, exercise or the power to appoint only a. part thereof.9 Appellant’s administrative regulation10 has defined “specific portion” as a fractional or percentile part of the entire corpus. The practical effect of the marital deduction is to defer taxation of some part of the decedent’s estate passing to the surviving [480]*480spouse until the death of the surviving spouse.
Reviewing the purpose of the marital deduction, Mr. Justice Goldberg speaking for a unanimous court in United States v. Stapf 11 explained:
“The 1948 tax amendments were intended to equalize the effect of the estate taxes in community property and common-law jurisdictions. [Footnote omitted.] Under a community property system, such as that in Texas, the spouse receives outright ownership of one-half of the community property and' only the, other one-half is included in 'tjie decedent’s estate. To equalize tbe incidence of progressively scaled estate taxes and to adhere to the patterns of state law, the mai’ital deduction permits a deceased spouse, subject to certain requirements, to transfer free of taxes one-half of the non-community property to the surviving spouse. Although applicable to separately held property in a community property state, the primary thrust of this is to extend to taxpayers in common-law States the advantages of ‘estate splitting’ otherwise available only in community property States.”
Problems that have arisen in this area have in the main concerned the extent to which the advantages of estate-splitting are to be allowed. Towards clarification of this issue, the above noted interpretive regulation was promulgated. A detailed discussion of the congressional intent behind the,.passage of the 1948 Revenue Act appears in Senate Report No. 1013, March 16, 1948 [to accompany H.R. 4790]. In that Report, the marital deduction additions to the 1949 Code are characterized as follows:
“These provisions have the effect of allowing a marital deduction with respect to the value of property transferred in trust or at the direction of the decedent where the surviving spouse, by reason of her right to the income and a power of appointment, is the virtual owner of the property.” 12
And, as above detailed, the virtual ownership interest encompasses that existent in a “specific portion” of the trust corpus.
In sum, the propriety of granting a marital deduction in this case must be measured by the purpose of the marital deduction as expressed in Stapf,
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FORMAN, Circuit Judge.
This is an appeal by the defendant, United States of America (hereinafter appellant) from a summary judgment entered by the United States District Court for the Middle District of Pennsylvania on the motion of plaintiff, [478]*478Northeastern Pennsylvania Bank and Trust Company, Executor under the will of Clarence C. Young (hereinafter ap-pellee), in the amount of $17,574.45 with interest, and from the denial of appellant’s motion for summary judgment. Appellee’s suit alleged an improper rejection of a claimed marital deduction.
Decedent died testate on May 3, 1958 survived by his wife and four children. Paragraph 6 of decedent’s will1 provided for the bequest of one-half of the residue of the estate to appellee who was directed to pay out of income, and corpus if necessary, the sum of $300 per month to decedent’s wife until his youngest child reached eighteen years of age, after which appellee was directed to pay decedent’s wife $350 per month for the rest of her life. Paragraph 6 also provided that if decedent’s wife survived him, she would have the power, exercisable by will, to appoint to her estate, or to others, any or all of the principal of the trust remaining at the time of her death. Paragraph 11 2 recited that such stipends were in no event to be liable for any debts contracted by the survivor and were not to be liable to attachment or assignment, but were solely for the use, maintenance and support of the survivor.3 Paragraph 11 also indicated that income produced from the corpus of the trust which exceeds the monthly allotment is to be accumulated. Paragraph 124 of the will granted appellee the power to authorize payments over and above the monthly stipend up to $1500 in the event of a serious illness or financial emergency affecting the surviving spouse. Whether the figure of $1500 is in the aggregate or may be paid in each event is unclear.
[479]*479Decedent’s adjusted gross estate was $199,749.96. Appellee sought to qualify the maximum amount, one-half of that adjusted gross estate, $99,874.98, as a marital deduction in accordance with Sections 2056(c) (1) 5 and 2056(b) (5) 6 of the 1954 Internal Revenue Code. The value of the property passing outside the will, to the decedent’s spouse, $41,751.02, was combined on the estate tax return with the full value of the testamentary residuary trust, $69,245.85, to total $110,996.87. That portion of $110,996.-87 which constituted one-half of the adjusted gross estate, $99,874.98, was listed, as noted above, as qualifying for the marital deduction. Appellant eliminated the full value of the testamentary residuary trust from the claimed marital deduction and thus decreased the amount of the allowable marital deduction to $41,751.02. The deficiency in estate tax was paid, a claim for refund was disallowed, appellee filed suit for refund, and after motions for summary judgment were presented by both parties, the District Court ruled in favor of the appellee and granted the refund.7
The District Court did not, as proposed by appellee, conclude that the entire value of the trust corpus, $69,245.-85, could be considered for the marital deduction. Instead, it applied a Treasury Department actuarial formula to value the present worth of the surviving spouse’s monthly stipend. This formula produced a value of $63,663.43. This was added to $41,751.02, the value of the property passed to the surviving spouse outside the will, to total $105,414.45, an amount in excess of one-half of the decedent’s adjusted gross estate, $99,874.-98, the maximum allowable statutory marital deduction. The District Court thus concluded that appellee was entitled to the full marital deduction of $99,874.-98, and judgment was entered for $17,-574.45 plus interest, representing the tax found to have been unlawfully collected by appellant.
I
As the marital deduction provisions function today, under a trust arrangement such as the one involved herein, the entire corpus of the trust qualifies for inclusion in the estate tax return as part of the marital deduction if each of two prerequisites 8 are met: (1) the surviving spouse is entitled to all the income produced from the corpus for the remainder of the survivor’s life with (2) power in the survivor to appoint the entire corpus remaining at the time of the power’s exercise. If the survivor’s requisite relationship to the corpus bars the qualification of the entire corpus for the deduction, a part of the trust corpus will qualify for marital deduction status if the survivor is entitled to the income from a “specific portion” of the whole, whether there be a power to appoint the entire interest remaining at the time of the power’s, exercise or the power to appoint only a. part thereof.9 Appellant’s administrative regulation10 has defined “specific portion” as a fractional or percentile part of the entire corpus. The practical effect of the marital deduction is to defer taxation of some part of the decedent’s estate passing to the surviving [480]*480spouse until the death of the surviving spouse.
Reviewing the purpose of the marital deduction, Mr. Justice Goldberg speaking for a unanimous court in United States v. Stapf 11 explained:
“The 1948 tax amendments were intended to equalize the effect of the estate taxes in community property and common-law jurisdictions. [Footnote omitted.] Under a community property system, such as that in Texas, the spouse receives outright ownership of one-half of the community property and' only the, other one-half is included in 'tjie decedent’s estate. To equalize tbe incidence of progressively scaled estate taxes and to adhere to the patterns of state law, the mai’ital deduction permits a deceased spouse, subject to certain requirements, to transfer free of taxes one-half of the non-community property to the surviving spouse. Although applicable to separately held property in a community property state, the primary thrust of this is to extend to taxpayers in common-law States the advantages of ‘estate splitting’ otherwise available only in community property States.”
Problems that have arisen in this area have in the main concerned the extent to which the advantages of estate-splitting are to be allowed. Towards clarification of this issue, the above noted interpretive regulation was promulgated. A detailed discussion of the congressional intent behind the,.passage of the 1948 Revenue Act appears in Senate Report No. 1013, March 16, 1948 [to accompany H.R. 4790]. In that Report, the marital deduction additions to the 1949 Code are characterized as follows:
“These provisions have the effect of allowing a marital deduction with respect to the value of property transferred in trust or at the direction of the decedent where the surviving spouse, by reason of her right to the income and a power of appointment, is the virtual owner of the property.” 12
And, as above detailed, the virtual ownership interest encompasses that existent in a “specific portion” of the trust corpus.
In sum, the propriety of granting a marital deduction in this case must be measured by the purpose of the marital deduction as expressed in Stapf, the interpretive regulation as promulgated by the Internal Revenue Service, the expression of the congressional intent on the subject, and the decedent’s intent in structuring the existent trust arrangement.
II
As the survivor has been given in Paragraph 6 the right to appoint the entire corpus, no question arises in this case concerning the “specific portion” of the corpus to which the power extends. The contentions concern solely the relationship between the survivor’s monthly stipend and the trust corpus — whether the decedent’s trust arrangement placed in his surviving spouse the right to all the income from the corpus, or all the income from a “specific portion” thereof? The appellee has offered alternative arguments, as it did before the District Court, to justify either the inclusion of the entire $69,245.85 residuary trust in the estate tax return as appropriate for'marital deduction status or the inclusion of $63,663.43 in the return as a “specific portion” of the residuary trust thus qualifying for marital deduction status.
The District Court rejected, properly we believe, appellee’s contention that the entirety of the trust corpus of $69,245.85 be entitled to marital deduction status. It was pointed out that appellee’s position fails for, in deciding whether the survivor is entitled to receive all the income from the trust [481]*481corpus for life, the determinative factor is what income the trust corpus could produce and not what is now being produced, or what ultimately will be produced. Here, the corpus may be able to produce more than the survivor’s monthly stipend. The surplus would have to be accumulated and the survivor would have no right to the present enjoyment of the excess income, even though, as argued by appellee, she would have the power to appoint it. Thus, the survivor would not be entitled to the entire income which might come from the corpus, within the intendment of Section 2056(b) (5) of the 1954 Intérnal Revenue Act.13 This very real consideration must also be given appropriate weight in determining whether the survivor is entitled to the income from a “specific portion” of the trust, and what such “specific portion” is.
Was appellee, as found by the District Court, entitled to the inclusion in its tax return of $63,663.43 from the corpus as a “specific portion” thereof —a part in which the surviving spouse had a total Income interest? The method of actuarial computation used by the District Court, along with the efficacy of the use of any actuarial method of computing “specific portion”, is of primary concern and requires analysis. It is well to undeiline the statutory language which must be considered in this respect. Section 2056(b) (5) of the Code makes it clear that “specific portion” is that part of the trust corpus from which the surviving spouse is entitled to “all the income.” Thus, unless the actuarial formula used by the District Court succeeds in isolating that part of the trust corpus from which the survivor is entitled to all the income for her lifetime, the computation is of no value. The actuarial method on which this case has been turned does not, in our view, isolate that part of the trust corpus from which the surviving spouse is entitled to all the income.
The District Court, in computing the present worth of the survivor’s monthly stipend, applied a formula used by the Treasury Department in the “valuation of annuities, life estates, terms for years, remainders and reversions.” This may be found in 26 C.F.R. § 20.-2031-7 (1961). The formula valued the worth of the monthly stipends by multiplying together the following factors: $300 (amount of monthly payment); 12 (number of months in a year); 1.0159 (factor for monthly payments); and 17.3911 (factor for the discount rate of 3% percent over the period of the widow’s life expectancy). The present worth of the $300 monthly stipend was determined to be $63,663.43, a “specific portion” of the trust corpus, and thus qualifying for marital deduction status. The District Court thus rejected the Treasury Regulation noted above so far as it required the “specific portion” to be specified in fractional or percentile form.
As an initial matter, we find the formula inappropriate in determining what part of a trust corpus may be considered a “specific portion” for marital deduction purposes. First, the mere fact that the formula is one for valuing an annuity eliminates it as appropriate for determining “specific portion.” The factor 17.3911 in the formula represents the present worth of one dollar invested in an annuity at ZV2 percent over the remaining life expectancy of a person forty-two years of age, the age of the surviving spouse at the decedent’s death. The formula thus provides a discount value through a process of capitalizing at 3% percent what are directed [482]*482to be $300 monthly payments. If $63,-663.43 is invested at age forty-two, that amount will provide the annuitant the required monthly payments for her entire life. At death the entire fund will have been dissipated. However, the factor of fund dissolution has in no way been contemplated by the decedent. The formula thus intrudes an artificial element into our problem, an element inconsistent with what the District Court in effect conceded to be the income production potential of the corpus when it ruled that appellee was not entitled to a marital deduction for the full value of the trust corpus.
Second, the monthly stipend alloted under the trust arrangement, $300 initially, is placed into the formula as the amount of income which a given fund must produce. However, under the trust arrangement, the trustees have not been directed to invest the corpus so that it will yield a given monthly income. All that has been directed is that the survivor receive such income, even if corpus must be invaded to make up the difference between the income yield of the corpus per month and the stipend allotment. And if the income yield be greater than $300 in a given month, the excess is to be accumulated. Thus, inclusion of the $300 figure in the formula is inappropriate for it equates the monthly stipend with the income yield from the corpus, elements which are in no way interchangeable.
Third, and this has a direct bearing on the point just made, the formula may be characterized as one which attempts to capitalize a given monthly stipend and produce a capital value, $63,663.43, which is to be the “specific portion” for marital deduction purposes. Such a method of computation is improper for we already know what is the value of the entire trust. Only from that given value of $69,245.85 may any computation of “specific portion”, if any be appropriate, proceed. Under the formula used by the District Court, the results that may be reached demonstrate the inappropriateness of a capitalization method which disregards the present value of the trust corpus. Assume for a moment a direction that appellee pay $350 monthly as a stipend to the surviving spouse as of the date of decedent's death. Capitalizing a $350 monthly stipend under the District Court’s formula for determining “specific portion”, the capital value figure reached is $74,199.80, a sum in excess of the value of the entire trust corpus. As stated above it is conceded that the estate is not entitled to a marital deduction for the sum of the entire trust corpus, because of the potentialities of income production. Yet, under the actuarial formula used to determine “specific portion”, the formula accepted by the District Court, at least the entire value of the corpus is to qualify for the deduction as a “specific portion” of the entirety, and theoretically a sum in excess of the entire trust corpus’s value will qualify. The incongruity of equating the monthly stipend with the income yield is manifest.
Finally, in determining the “specific portion” of a given trust corpus from which part the survivor has an absolute income right, actuarial computation is inappropriate when the formula uses variable factors other than mere life expectancy. The use of the monthly stipend as the income factor in the formula noted above exemplifies the attempt to make constant that which is variable in this case. The 3% percent investment factor in the actuarial formula is likewise unreal. As previously indicated, Congress’s intent was to give a marital deduction to those interests of a surviving spouse in a common law jurisdiction which were akin to the fee simple interest held by a survivor in a community property state. Such an interest, to qualify as akin to a fee simple interest, must be subject to the rise and fall of the market. An investment constant, such as 3% percent in the instant case, though accepted in actuarial formulas, has no place in a problem where the very real income variations turn the issue of the allowance of the marital deduction. Indeed, the use of such a constant is [483]*483absent from the regulations dealing with the “specific portion” issue, whereas it may be found in the regulations in formulas geared to different problems.
Having attempted to demonstrate the inappropriateness of the formula used by the District Court, the question arises as to whether, under the facts of this case, there does exist a method for isolating a “specific portion” of the trust corpus to qualify for marital deduction status? The term “specific portion” has been appropriately defined in this manner:
“Presumably, specific portion does not mean anything more than a designation of the amount of the surviving spouse’s interest which makes it feasible to compute the amount of the marital deduction.”14
Feasible computation of a “specific portion” is the key to marital deduction status.
The Internal Revenue Service in its above noted regulation considers any testamentary trust which describes the relationship between the income to be received by the survivor and the trust corpus in anything but “fractional or percentile” terms as one which expresses a relationship falling outside the susceptibility of computation, and thus one which thwarts a determination of “specific portion” for purposes of the marital deduction. Gelb v. C. I. R.,15 heavily relied upon by appellee and the District Court, expressed a view which is contrary to the interpretive regulation. In Gelb the surviving spouse was entitled to all the income from the trust corpus for her life. As distinguished from the case at hand, the issue in Gelb was whether the survivor had a power of appointment over a “specific portion” of the trust corpus. That problem arose because the trustees in Gelb were empowered to invade the corpus, in their discretion, to the extent of $5,000 per year for the support, education and maintenance of the decedent’s minor daughter. The Government argued that the relationship between the extent of the invasion of corpus for purposes of supporting, educating, and maintaining the decedent’s minor child, and the entirety of the corpus, was not expressed in “fractional or percentile” form and thus there was no “specific portion” for marital deduction purposes. The Second Circuit reviewed the use of actuarial formulas at some length and then finding for the taxpayer, remanded the case to the Tax Court to determine how much of the trust corpus qualified for the marital deduction under the actuarial principles which had been discussed. Though there was no mention of what particular formula should be applied, in either the Second Circuit’s opinion or the stipulation of dismissal by the parties on the remand indicating the lump sum of the taxpayer’s overpayment,16 Gelb can easily be read to be consistent with the result for which the appellant contends in the instant case. Under the. facts of Gelb only the life expectancies were subject to variation. By applying the $5,000 figure, the maximum extent to which the trustees could invade the trust corpus annually, together with the combined average figure of the surviving spouse’s and minor child’s life expectancies, the lump sum amount to be carved out of the trust corpus could be acceptably maximized by the computation. The remainder would be that part, of the trust corpus, the “specific portion”, to which the estate would be entitled to a marital deduction, a part of the corpus which in no reasonable event could be invaded for interests other than, those of the surviving spouse.
The Gelb principles and disapproval' of the Government’s regulation are appropriate to the facts of that case. But. there is no need to take a position concerning the validity of that interpretive: [484]*484regulation, as it applies to this case. Suffice it to say, even assuming its invalidity, we have been unable to conceive of a method to compute the “specific portion” of the trust corpus to which the surviving spouse is entitled to all the income for her life. There are too many variables here. The market conditions for purposes of investment are unknown. If they are poor, a greater invasion of corpus to meet the monthly stipend will be necessary, causing a concomitant diminution of income. If market conditions are good corpus may not have to be invaded, and income accumulations may indeed accrue. Furthermore, the extent to which the ap-pellee may, under Paragraph 12 of the will, choose to invade corpus for illness and financial emergencies is an unknown factor of considerable moment in any computation of “specific portion”. Thus, in this case, the factual constants do not exist upon which the maximum income can be theoretically computed, as it was possible to theoretically compute the maximum invasion of corpus in Gelb. In short, the ratio between the maximum monthly income and the monthly stipend —the fraction of the entire corpus which would be the “specific portion” for marital deduction purposes — may not be acceptably computed.17
In essence then, neither the District Court’s formula, nor any other method of calculation of which we can conceive, when applied to the facts of this case, provides a method to handle the problem of maximizing the investment potential of the trust corpus. Because the marital deduction is to be allowed only when the trust beneficiary has been given an interest akin to a fee simple, what might ultimately happen to the invested corpus is the central consideration in determining marital deduction qualification, and the ability to maximize future investment potential is crucial to qualification, absent a fractional or percentile expression of the right to income from the trust corpus. Thus, even if done with precision, the time of the decedent’s death is the inappropriate time at which to freeze the income production status of the invested corpus for purposes of qualifying a “specific portion” for the marital deduction.
We have reached the above conclusion with an awareness that a three-judge panel of the Seventh Circuit has most recently expressed contrary views, one judge dissenting.18 We think the observation of the dissenter, however, in characterizing the impact of the formula used in that case — “something judicially rationalized as approximately equivalent . is not enough” 19 — is most appropriate. In our view, therefore, appellant’s position is sustained.20
[485]*485Sustaining the appellant’s position is consistent with both the decedent’s intent as expressed in his will and the purpose behind the marital deduction provision. The decedent’s intent emerges rather clearly from Paragraph 11 of his will. In reciting that the monthly stipends were to be used exclusively for the survivor’s sole and individual use, maintenance, and support, sums which he endeavored to make neither liable for any debts contracted by her, nor subject to her assignment, the decedent evidenced a desire to limit the survivor’s control over the monthly stipend. By also limiting the amount of these stipends to a sum which could fall below the income production of the corpus, the decedent evidenced an intent to give to his surviving spouse only that which he thought would be proper for her support and maintenance. Such an interest falls short of expressing a desire to place in the hands of his survivor an interest akin to a fee simple, the only interest which Congress viewed as meeting the standards of marital deduction status.
The judgment of the United States District Court for the Middle District of Pennsylvania will be reversed and the case remanded for entry of summary judgment in favor of appellant.