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ESTATE MATTHEW FRANK MCMULLIN (07/03/80)

decided: July 3, 1980.

IN RE ESTATE OF MATTHEW FRANK MCMULLIN, DECEASED, TRUST FOR LEONA MINETTA MCMULLIN, DECEASED


No. 140 March Term, 1979, Appeal from the Final Decree of the Court of Common Pleas of Allegheny County, Pennsylvania, Orphans' Court Division, at No. 4034 of 1965.

COUNSEL

David K. McMullin, Pittsburgh, for appellant.

John G. Kish, Pittsburgh, for Pittsburgh National Bank, Testamentary Trustee.

Fory L. Musser, III, Pittsburgh, for Estate of Matthew Frank McMullin.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Roberts

[ 490 Pa. Page 504]

OPINION OF THE COURT

On this appeal, we are asked to determine whether a general testamentary power of appointment over a trust created by a Pennsylvania donor was validly exercised by the donee of the power, an Iowa domiciliary. The donee's will was probated in Iowa, where an Iowa probate court held that the power of appointment was validly exercised. We agree with the Orphans' Court Division of the Court of Common Pleas of Allegheny County that this determination of the Iowa court may not be relitigated in or disturbed by a Pennsylvania court. Accordingly, we affirm the decree of the orphans' court.

Matthew Frank McMullin died on September 8, 1965, a domiciliary of Pennsylvania. By Paragraph Fifth of his will dated March 4, 1958, Matthew McMullin created a trust in favor of his wife Leona Minetta McMullin, giving her the trust income for life plus the power to invade the principal.*fn* By the same paragraph, Matthew McMullin gave Leona McMullin a general testamentary power of appointment over the principal of the trust:

[ 490 Pa. Page 505]

"(3) Upon the death of my wife, the Trustee shall transfer and distribute, free and clear of all trusts, the principal of the trust estate then in its hands to and among such persons, and in such proportions and in such manner, as my wife, by her Last Will and Testament, shall appoint and designate. I intend that the power of appointment which I hereby confer upon my wife shall be a general power of appointment and that it may be exercised by her, if she sees fit, in favor of her estate. No exercise of said power shall be valid or effective unless the exercise makes specific references to this Will and to the power herein granted."

Matthew McMullin's will further provided:

"(4) In the event that my wife shall not exercise the aforesaid power of appointment, or if she shall not validly appoint all of the principal of the trust estate, or any part thereof, then the principal of the trust estate or that part thereof not validly appointed, as the case may be, shall upon her death be transferred and delivered to my nephews and nieces, being the children of my deceased sisters, Mrs. Jennie B. Wilson and Mrs. Margaret M. ...


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