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inter vivos power of appointment over the marital trust property.
To the contrary, we believe that the Baltimore County circuit
court’s conclusions in this regard were effectively set aside by
the court of special appeals. Cf. Hudson v. Commissioner, 100
T.C. 590, 594 (1993) (stating that for purposes of applying
collateral estoppel, “where a trial court’s conclusions of law or
findings of fact are not passed on by the appellate court, the
trial court’s conclusions of law or findings of fact are
effectively set aside”).
Finding no other rulings of Maryland courts that are
dispositive in determining whether Mr. Posner’s will granted
decedent an inter vivos general power of appointment, we must
make our best effort to determine how Maryland’s highest court
would decide the issue. See Commissioner v. Estate of Bosch, 387
U.S. at 465; West v. Am. Tel. & Tel. Co., 311 U.S. at 237; Estate
of Casey v. Commissioner, supra at 898.
C. Analysis
A threshold issue is whether Mr. Posner’s will conferred
upon decedent any sort of a power of appointment--testamentary or
inter vivos, general or limited. The parties have stipulated
that Mr. Posner’s will “did not include any of the substantive
dispositions, such as income beneficiaries, remaindermen, and
powers of appointment, normally found in a document establishing
a testamentary trust.” (Emphasis added.) The holding of both
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