Estate of Ralph H. Davis, Deceased, Evelyn Davis, Personal Representative - Page 20




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               consent of any other person.  * * *  Likewise, if there                
               are any restrictions, either by the terms of the                       
               instrument or under applicable local law, on the                       
               exercise of a power to consume property (whether or not                
               held in trust) for the benefit of the spouse, the power                
               is not exercisable in all events.  Thus, if a power of                 
               invasion is exercisable only for the spouse’s support,                 
               or only for her limited use, the power is not                          
               exercisable in all events.  In order for a power of                    
               invasion to be exercisable in all events, the surviving                
               spouse must have the unrestricted power exercisable at                 
               any time during her life to use all or any part of the                 
               property subject to the power, and to dispose of it in                 
               any manner, including the power to dispose of it by                    
               gift (whether or not she has power to dispose of it by                 
               will).  [Emphasis added.]                                              
               Section 2056(b)(5) requires the surviving spouse to “receive           
          an unlimited power to appoint the underlying property to himself            
          or to his estate.”  Estate of Smith v. Commissioner, 79 T.C. 974,           
          977 (1982)(citing Estate of Field v. Commissioner, 40 T.C. 802              
          (1963)); see Estate of Meeske v. Commissioner, 72 T.C. 73 (1979);           
          see also Estate of May v. Commissioner, 32 T.C. 386 (1959), affd.           
          283 F.2d 853 (2d Cir. 1960); sec. 20.2056(b)-5(d), Estate Tax               
          Regs.  The power must be exercisable alone and in all events.               
          Estate of Brantingham v. United States, 631 F.2d 542 (7th Cir.              
          1980); see Estate of May v. Commissioner, supra.                            
               In deciding whether decedent’s trust created a power of                
          appointment over the entire interest, we must consider whether              
          the trust documents created a general power of appointment under            
          California law.  Estate of Robertson v. United States, 310 F.2d             
          199 (5th Cir. 1962); Estate of Opal v. Commissioner, 54 T.C. 154            
          (1970), affd. 450 F.2d 1085 (2d Cir. 1971); Estate of Comer v.              





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