Estate of Allgeyer

60 Cal.App.3d 169 (1976) 129 Cal. Rptr. 820 Estate of ANNA E. ALLGEYER, Deceased.

KENNETH CORY, as State Controller, Petitioner and Respondent,

v.

HELEN A. CLARK, as Executrix, etc., Objector and Appellant.

Docket No. 15668. Court of Appeals of California, Fourth District, Division Two.

July 15, 1976. [170] COUNSEL

Kaufman & Morgan and J. Norman Morgan for Objector and Appellant.

Myron Siedorf, Margaret Groscup and Mary Cardiff for Petitioner and Respondent.

OPINION

FOGG, J.[*]

This is an appeal by the executrix from an order fixing the inheritance tax in the matter of the estate of Anna E. Allgeyer, deceased. [171] The primary issue in this case is whether the decedent's power to invade the corpus of a trust for her "reasonable support, care and comfort" is a general power of appointment subject to inheritance tax under section 13692 of the Revenue and Taxation Code.[1]

Statement of Facts

On January 26, 1953, Herman E. Allgeyer executed a will which included a testamentary trust for the benefit of his wife, Anna E. Allgeyer. He died on December 17, 1963, and his will was admitted to probate. It provided in pertinent part, that: "I give, devise and bequeath the residue of my estate, IN TRUST, to my wife, ANNA E. ALLGEYER, to serve without bond, but in the event she predeceases me or fails to act or ceases to act, then to BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association, IN TRUST HOWEVER, both as to my said wife, ANNA E. ALLGEYER, and said BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, to be held, administered and distributed in accordance with the following provisions: