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were to find that decedent had a general power of appointment
with respect to one-sixth of the principal of the testamentary
trust, under Pennsylvania law decedent exercised that power
through the residuary clause in her will, and one-sixth of the
principal of that trust (i.e., $320,732.11) is includible in
decedent’s gross estate under section 2041(a)(1).10
We turn now to the power of appointment that decedent had
with respect to $5,000 of the principal of the inter vivos trust.
For the first time on brief, the estate advances the position
that, pursuant to the agreement to amend the inter vivos trust,
under section 2041(b)(1)(C)(ii) decedent did not have at the time
of her death a general power of appointment with respect to
$5,000 of the principal of that trust.11 In support of its
10The estate may also be arguing on brief that decedent did
not exercise the power of appointment that decedent had with
respect to one-sixth of the principal of the testamentary trust
because she did not specifically name any beneficiaries of that
power in her will. We reject any such argument. Decedent’s will
provided in pertinent part as follows:
SECOND: I give my remaining entire estate in
equal shares to my children, per stirpes * * *.
As discussed supra note 9, the estate has acknowledged, and we
have found, that under Pennsylvania law an individual who has a
general power of appointment may exercise that power through the
residuary clause in that individual’s will.
11We conclude that the estate’s position on brief that under
sec. 2041(b)(1)(C)(ii) decedent did not have at the time of her
death a general power of appointment with respect to $5,000 of
the principal of the inter vivos trust raises a new issue.
However, respondent does not object to, and we find no prejudice
(continued...)
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