2.7 Ascertainable Standards are Measureable
The “ascertainable standards” are ascertainable for the very reason that they are measurable. InIthaca Trust Co. v. United States, 279 U.S. 151, 49 S. Ct. 291 (1929) the issue was whether a charitable estate tax deduction was permissible where a trust for the widow’s maintenance “in as much comfort as she now enjoys” preceded the gift over to the charity. The Supreme Court upheld that the deduction for the gift over stating: “The standard was fixed in fact and capable of being stated in definite terms of money.” Because the ascertainable standards are fact based, such standards are not rooted in the opinion of the trustee/beneficiary. In a New York case, for example, the issue was whether the widow, who was a co-trustee of a trust for her benefit to maintain her standard of living, could unilaterally determine the extent of the principal invasion. In that case, the Court held that she did not have the right to determine the extent of the principal invasion: “‘standard of living’ is therefore the manner in which one lives at a particular time; it is a fact to be established by proof of relevant circumstances … they are facts which may be readily established … contrary to the counsel for the trustees, the decedent did not intend to confer upon the trustees the power to determine her ‘standard of living.’ ‘Standard of living’ is a fact not an opinion.” In Re Golodetz’ Will, 118 N.Y.S.2d 707, 713 (N.Y. 1952) (In Golodetz the trustees had “absolute and uncontrolled” discretion to invade the principal to maintain the widow in her accustomed standard of living.) Nor are the ascertainable standards of support and maintenance to be determined by a beneficiary: “It is clear that the Testator did not intend the last-quoted clause (the standard of living clause) to constitute a designation of his wife as the person to determine the amount to which she is entitled from the trust and hence it is a matter for the Court to determine upon a proper showing. It may be observed, moreover, that the construction urged upon us by the Petitioner (the widow) would enable her in effect to destroy the trust.” In Re Morse’ Will, 98 N.Y.S.2d 43, 47 (N.Y. Sur. 1950).