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surviving spouse could invade corpus and actually did so shortly
after the decedent died. The Court noted that the surviving
spouse could not invade corpus in all events because the trust
would terminate that right upon legal incapacity or upon the
appointment of a guardian. The Court noted that the surviving
spouse's right to receive income would terminate at the same
time.
The estate argues that the facts of Estate of Tingley are
distinguishable from the facts at hand. The estate contends that
the power of appointment in Estate of Tingley, which terminated
upon the surviving spouse's legal incapacity or the appointment
of a guardian, is different from the power of appointment in this
case, which, the estate asserts, is activated by incompetency.
The estate claims that the surviving spouse in Estate of Tingley
could lose the power to appoint the property for reasons other
than legal incapacity, whereas the Agreement here terminates the
Trust only on death or incompetency. The estate concludes that
these differences in fact warrant a result in the instant case
different from the result in Estate of Tingley.
We disagree with the estate that Estate of Tingley is
inapposite to our decision herein. Although there may be
differences between the facts of Estate of Tingley and the facts
of this case,4 the critical fact that appears in both cases is
4 We do not agree with the estate that one of these
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