Estate of Sarah E. Greve, deceased, Charles E. Greve & David R. Greve, Co-Executors - Page 19

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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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