Estate of Rose B. Posner, Deceased, David B. Posner, Personal Representative - Page 10

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          States, 428 F.2d 538, 544-545 (5th Cir. 1970); Estate of Edelman            
          v. Commissioner, 38 T.C. 972, 976-977 (1962); see also Martin v.            
          United States, 780 F.2d 1147, 1148 n.1 (4th Cir. 1986); Condon              
          Natl. Bank v. United States, 349 F. Supp. 755, 759-760 (D. Kan.             
          1972); sec. 20.2041-1(c), Estate Tax Regs.                                  
          II. Did Decedent Possess a General Power of Appointment Over the            
               Marital Trust Property?                                                
               A.  The Parties’ Positions                                             
               As discussed below, the court of special appeals has ruled             
          that Mr. Posner’s will granted decedent no testamentary power of            
          appointment over the marital trust property.  Respondent does not           
          dispute that ruling.  Respondent contends, however, that Mr.                
          Posner’s will granted decedent an inter vivos general power of              
          appointment over the marital trust property so as to make it                
          includable in her gross estate pursuant to section 2041(a).  The            
          estate argues that under applicable Maryland law, as adjudicated            
          by the court of special appeals, decedent possessed no power of             
          appointment over the marital trust property.  Accordingly, the              
          estate contends, inclusion of the marital trust property in                 
          decedent’s gross estate, as reported on the estate’s estate tax             
          return, was in error.                                                       
               B.   Decisions of the Maryland Courts                                  
               State law, which creates legal interests and rights in                 
          property, including powers of appointment, determines the nature,           
          scope, and validity of such legal interests and rights.  See                





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