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summary judgment for the daughters, ruling that the marital trust
property was not part of decedent’s estate but instead reverted
to Mr. Posner’s estate:
The Court finds as a matter of law that, when Mr.
Posner’s Will is read in its entirety, Item XIV grants
Mrs. Posner power over the Marital Trust. However,
this power is limited to inter vivos because ambiguous
granting language must be construed only as broadly as
is necessary to fulfill the testator’s intent. See
Hutchinson v. Farmer, 190 Md. 411 [58 A.2d 638] (1948).
Furthermore, the fact that the IRS approved the marital
deduction did not establish that Mrs. Posner’s powers
were greater than inter vivos because the Trust would
have qualified for the deduction if Mrs. Posner had
either inter vivos or testamentary power.
As Mrs. Posner’s powers over the Marital Trust
were limited to inter vivos, her attempt to fund the
Revocable Trust with assets from the Marital Trust
fails. The Revocable Trust, by its terms, is not an
exercise of inter vivos power because it could not vest
until Mrs. Posner’s death. Accordingly, Mrs. Posner’s
Revocable Trust was an attempt to exercise a
testamentary power that she did not possess.
The Court concludes that the assets from the
Marital Trust therefore revert to Mr. Posner’s estate
to be distributed according to the residuary clause in
his Will. [McDonagh v. Geduldig, No. C-97-001002
(Baltimore County Cir. Ct. Aug. 11, 1997).]
The Maryland Court of Special Appeals (court of special
appeals) affirmed the Baltimore County circuit court’s ruling
that Mr. Posner’s will granted decedent no testamentary power of
appointment. Posner v. McDonagh, No. 3C971002 (Md. Ct. Spec.
App. Mar. 11, 1997). The court of special appeals was
unpersuaded that references in Mr. Posner’s will to the Federal
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