- 19 - 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...)Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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