Flournoy

The Controller of the State of California appeals from an order fixing the inheritance tax in the matter of the estate of Susan L. *803 Nunn, deceased. 1 The basic question presented is whether Susan at the time of her death possessed a general power of appointment over the assets of a testamentary trust provided for by her predeceased husband, George Lee Nunn. We conclude that she possessed such a power and that the inheritance tax appraiser properly included the assets of the trust in Susan’s estate. 2 Accordingly, we reverse the order determining no part of the trust assets were taxable in her estate.

On April 24, 1952, George Lee Nunn and Susan L. Nunn executed a joint and mutual will. Insofar as is here relevant the will provided that all their property, with certain exceptions, was community property. Each bequeathed the survivor a life estate in his or her net estate with the power to invade the corpus for the life tenant’s “use and need” as the life tenant “may determine.” Subject to the life estate and power to invade, each made bequests of the uninvaded corpus to identical remaindermen. The bequests of the life estates and powers to invade were made in lieu of…