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Maryland courts to adjudicate the issue was that Mr. Posner’s
will created no testamentary power of appointment. Inasmuch as
Mr. Posner’s will contains no substantive provisions regarding
powers of appointment of any sort, we are persuaded that Mr.
Posner’s will also failed to create an inter vivos power of
appointment (as the court of special appeals stated in dicta).
Respondent argues that the failure of item II of Mr.
Posner’s will to provide substantive dispositions of income and
principal is a “scrivener’s error” and that items II and XIV of
Mr. Posner’s will, when read together, clearly establish his
intent to create a trust and grant decedent “a right to all trust
income, and a general power of appointment over the trust, such
that the trust would qualify for the Federal estate tax marital
deduction.” We are unpersuaded that the absence of substantive
dispositions should be regarded as a mere scrivener’s error.
Rather, we believe that because of the lack of such dispositions,
the will fails to confer on decedent a power of appointment with
respect to the marital trust property. We discern in Mr.
Posner’s will a directive that the marital trust property should
qualify for the Federal estate tax marital deduction. The will
does not provide, however, the necessary terms for satisfying
this directive. Reading Mr. Posner’s will as respondent suggests
would be tantamount to rewriting Mr. Posner’s will to include
these provisions, which we are not at liberty to do. See Gaither
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