Westover

Plaintiff's deceased father created a trust by will. It defined “net income” as the gross income received from trust properties less trust expenses, and provided that such net income during the life of the plaintiff should be added to the corpus of the trust and thereafter “considered as principal of said trust.” It was further provided that the trustees were to pay plaintiff annually five percent of the fair market value of the corpus of the trust, which was to be determined annually upon appraisal in the manner set forth in the will. 1

*433 In 1944 the net income of the trust was $24,348.14, and there was distributed to the plaintiff for that year under the trust the sum of $18,356.36, which was equivalent to 5% of the fair market value of the corpus of the trust as computed under the provisions of the trust. The latter sum was deducted by the trust in its tax return, but was included in the gross income of the plaintiff in computing her individual income tax for the year 1944.

Plaintiff seeks herein to recover that portion of her 1944 income tax which was paid upon the calculation which included *434 said $18,356.36 in her gross individual income. Her contention rests upon…