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Commissioner, 31 T.C. 1193 (1959); Estate of Boydstun v.
Commissioner, T.C. Memo. 1984-312. Unless the language used by
the testator in creating the trust creates an unambiguous general
power of appointment, “the ascertainment of the breadth of the
trustee’s power is to be ascertained with reference to the intent
of the trust’s creator.” Estate of Smith v. Smith, 172 Cal.
Rptr. 788, 792 (Ct. App. 1981).
A power of appointment is not considered a general power of
appointment if it is limited by an ascertainable standard.
Estate of Nunn v. Beverly Hills Natl. Bank, 518 P.2d 1151 (Cal.
1974). A power of appointment that is limited by an
ascertainable standard relating to the person’s health,
education, support, or maintenance is not a general power of
appointment. Cal. Prob. sec. 611(b); see Estate of Nunn v.
Beverly Hills Natl. Bank, supra (applying a predecessor of sec.
611(a) and (b) (West 2002)); see also Estate of Smith v. Smith,
supra. Section Five of the amended trust permits invasion of the
principal of the trust only if the Evelyn L. Davis trust is
insufficient to provide for the surviving spouse’s health,
support and maintenance. In the instant case, we conclude that
the trustee may only invade the principal of the trust for the
surviving spouse’s health, support, and maintenance, as the power
to invade is predicated on those needs, and the trustee may only
appoint the principal to meet those needs. Furthermore, the
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