Nos. 36 and 37 May Term, 1979, Appeal from Decree of Court of Common Pleas of Dauphin County, Orphans' Court Division, at No. 796 of 1975, entered May 9, 1979.
Donald R. Waisel, Harrisburg, for appellee National Central Bank.
Ronald M. Katzman, Harrisburg, for appellee Evan. Luth. Church.
Edward G. Biester, Jr., Atty. Gen., for appellee Dept. of Justice.
Robert H. Maurer, Harrisburg, for appellee Estate of Laura O. Passmore.
Roberts, Justice. Nix, J., joins this opinion and files a concurring opinion. Kauffman, J., files a dissenting opinion.
This case poses the question whether donee Laura Passmore effectively exercised a power of appointment that her
husband, donor Charles F. Passmore, created in her favor. Unlike the Orphans' Court Division of the Court of Common Pleas of Dauphin County, we conclude that donee did effectively exercise that power.
In 1970, donor executed a "Revocable Agreement of Trust" by which he created a revocable inter vivos trust for his own benefit as well as the benefit of donee and donee's sisters. Donor named appellee, National Bank and Trust Company of Central Pennsylvania (the Bank), as trustee. Donor provided that, upon his death, if he is survived by donee, the Bank is to divide trust principal and form two new trusts. One of the new trusts, "Trust A," is to consist of "such fractional portion of [original trust principal] that qualif[ies] for the marital deduction in determining the Federal estate tax on the estate of [donor] . . . ." Remaining principal is to comprise the other trust, ...