Flournoy

The executor of the last will and testament of W. S. Rosecrans (decedent) appeals from an order of the superior court, sitting in probate, overruling the executor’s objections to the report of the inheritance tax appraiser and fixing the inheritance tax in accordance with that report. As will appear, we have concluded that the court below correctly ruled that the language of a trust instrument upon which the tax issue turned gave decedent only a power of appointment over the trust property, and that the order should be affirmed.

In May 1938 decedent’s mother, Lillian T. Rosecrans, executed an instrument which created a revocable, inter vivos trust, called the “Lillian T. Rosecrans Trust,” the pertinent provisions of which are set forth in the margin. 1

Lillian T. Rosecrans predeceased W. S. Rosecrans, leaving him and his sister Carmelita as the two named trustees and beneficiaries of the Lillian T. Rosecrans Trust. W. S. Rosecrans died in July 1965. At the time of the order here involved Carmelita Rosecrans was still living and the trust had not yet terminated.

In March 1960 decedent had created a trust called the W. S. Rosecrans Trust, under the terms of which he was…

I concurjudgment.

Appellant’s petition for a rehearing was denied March 9, 1971.