(dissenting).

The majority opinion is, I think, not in accord with the views as expressed in Helvering v. Fitch, 309 U.S. 149 , 60 S.Ct. 427, 84 L.Ed. 665 ; Helvering v. Fuller, 310 U.S. 69 , 60 S.Ct. 784 , 84 L.Ed. 1082 ; Helvering v. Leonard, 310 U.S. 80 , 60 S.Ct. 780 , 84 L.Ed. 1087 , and Pearce v. Commissioner, March 9, 1942, 62 S.Ct. 754 , 86 L.Ed. —. In the case of alimony trusts, the income of the trust paid to the wife constitutes income either to the husband or to the wife, depending upon the existence of an obligation. If the husband is obligated to the wife, even though contingently, a satisfaction of that obligation by the trust constitutes income to the husband but not to the wife because the latter is merely receiving payment on her obligation. See Commissioner v. Nicolai, 9 Cir., March 28, 1942, 126 F.2d 927 .

From this it is apparent that to escape taxation, the husband must show that there is no obligation on his part which is satisfied by payments to the wife from the trust, and if it is the wife who seeks to escape taxation, she must show that there was an obligation on the husband. Since the Commissioner’s determination is presumptively correct, the burden to show error is on whoever seeks to upset that determination. Since in the instant case, it is the wife who seeks to overturn the Commissioner’s determination, she has the burden of proving that the payments were made to her from the trust pursuant to a continuing obligation of the husband. Pearce v. Commissioner, supra. The degree of proof required is “clear and convincing proof”. Id. [ 62 S.Ct. 758 , 86 L.Ed. -].

The wife introduced an agreement made with her husband by which the husband, and “his estate” agreed to make up any deficiencies in trust income. Such an agreement is clear and convincing proof of a contractual obligation quite as much as an agreement guaranteeing payment of principal and interest of bonds in the alimony trust as in Helvering v. Leonard, supra, at page 84 of 310 U.S., at page 783 of 60 S.Ct., 84 L. Ed. 1087. As said there, the fact that the husband might never have to make good his promise is “beside the point”.

While it may be assumed, without so deciding that the duty of the husband or his estate to pay support to the wife based merely on the pre-existing marital status, was extinguished by the death of the husband, nevertheless the obligation of the husband herein is not based on the pre-existing marital status, but on a written agreement of guaranty. That agreement specifically bound his estate. Such an agreement is like any agreement guaranteeing payment of the debt of another. In such case the promise is not extinguished merely because the guarantor dies. In addition the applicable local law seems to specifically hold the obligation to continue. Finally, no local law to the contrary or even bearing on the question is cited by respondent. In fact, respondent concedes that the contractual obligation survives by saying: “Of course, the husband’s estate becomes liable for his debts and obligations arising out of contracts which are not dependent upon his personal services. * * *”

It is my opinion that under these circumstances it cannot be said that the wife has failed to carry her burden of showing an obligation on the part of the husband’s estate.

The decision should be reversed.