Opinion
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 to receive the income of the trust during his lifetime; and upon his death his surviving wife was *37to receive from the trust an amount equal to one-half of all his separate property, including in the total of separate property for the purpose of computing such one-half, the decedent’s one-half interest in the Lillian T. Rosecrans Trust.
Decedent in article sixth of his last will and testament2 left his residuary probate estate, including specifically his interest in the Lillian T. Rosecrans Trust, to the Rosecrans Foundation.
The effect of these various transactions is: (a) decedent’s interest in the Lillian T. Rosecrans Trust passes to the Rosecrans Foundation and, since that entity is a qualified charity, no inheritance tax is due on the transfer to it (see §§ 13841, 13842, Rev. & Tax. Code); (b),because of the nature of the W. S. Rosecrans Trust, the widow’s distributive share from that trust is taxable to the same extent as though it had been transferred to her as a devisee or legatee under decedent’s will. In computing the inheritance tax due because of the transfer to the widow, she is entitled to the so-called “marital exemption,” of the value of one-half of decedent’s separate property, provided for in section 13805 of the Revenue and Taxation Code.3
The primary issue in this case is the amount of the exemption so granted. If decedent’s interest in the Lillian T. Rosecrans Trust (valued at $879,303.83) is included in the total value of the decedent’s separate property which is to be halved in calculating the marital exemption, then the inheritance tax payable on account of the transfers to the widow will be some $40,000 less than that imposed by the order from which this appeal is taken. In our view the trial court correctly ruled that decedent’s interest in that trust should not be so included.
The executor agrees that the inheritance tax in this case is governed by the law as it existed at the time of decedent’s death, i.e., prior to the effective date of the 1965 amendments. (Stats. 1965, ch. 1070.) Likewise, it is not disputed, at least for purposes of this litigation, that (1) if decedent’s interest in the Lillian T. Rosecrans Trust on the date of his *38death was a power of appointment and nothing more, then by inference his interest in that trust was not property “transferred” by him at his death, and would thus not be included in the calculation of the marital deduction under section 13805 {ante, fn. 3); but (2) on the other hand, if the interest was something more than or different from a power of appointment, it would be so included.4
The executor contends that, contrary to the trial court’s determination, there is “no power of appointment language in the Lillian T. Rosecrans Trust,” that “No one is given a power or discretion to appoint to anyone.” However, no particular form of words is necessary to create a power of appointment. (Estate of Kuttler (1958) 160 Cal.App. 2d 332, 334, 337 [7] [325 P.2d 624] and citations.) Thus, in Kuttler the language “Notify Earl Hayter or my sister Bertha McQuarrie ... for them to dispose of my belongings as they see fit” was held to confer a power of appointment upon the two named persons. (P. 337 [2b] of 160 Cal.App. 2d.)
In the present case the language of the trust instrument (see fn. 1, ante) directed that the trustees (who were at the times here relevant W. S. and Carmelita E. Rosecrans) “shall pay from principal . . . whatever sums they may determine and at whatever time or times they may determine, in equal amounts, to W. S. Rosecrans and Carmelita E. Rosecrans, or, if either be deceased, to the heirs, devisees and legatees of such deceased person, subject to the administration of his or her estate,” and that “On the termination of this trust all the property thereof . . . shall be divided into two equal parts; one part shall be distributed to the heirs, *39devisees and legatees of W. S. Rosecrans, subject to the administration of his estate; the other part shall be distributed to the heirs, devisees and legatees of Carmelita E. Rosecrans, subject to the administration of her estate.”
The legal effect of the quoted provisions is indistinguishable from general powers of appointment. (See 72 C.J.S. 415-416.) The Legislature defined general powers of appointment for the first time in 1965 (Rev. & Tax. Code, § 13692), and it again defined such powers in similar terms in the Power of Appointment Act, effective July 1, 1970. (Civ. Code, § 1380.1 et seq.) The new act also provides that “Except to the extent that the common law rules governing powers of appointment are modified by statute, the common law as to powers of appointment is the law of this state.” (Civ. Code, § 1380.1.) In determining whether an instrument executed before these statutory definitions were enacted (as was the trust instrument here involved) created a power of appointment at common law, it would appear that the statutory definitions provide relevant indicia of what the common law was. (See generally discussion in Witkin, Summary of Cal. Law, 1969 Supp., pp. 423-424.)
Insofar as here relevant, section 1381.2 of the new act appears to be in accord with the common law. It provides in pertinent part that “(a) A power of appointment is ‘general’ only to the extent that it is exercisable in favor of the donee, his estate, his creditors, or creditors of his estate, whether or not it is exercisable in favor of others. . . .
“(c) A power exercisable by the donee only in conjunction with a person having a substantial interest in the appointive property which is adverse to the exercise of the power in favor of the donee, his estate, his creditors, and creditors of his estate is not a general power.”5
Under the quoted provisions both the decedent’s power to invade corpus and his power to dispose of the remaining corpus by will are general powers, for his sister’s right to veto an invasion of corpus under the inter vivos power could not be exercised for her own benefit. To hold, as the executor contends, that the combination of these general powers of appointment makes the power to appoint by will something more than a power of appointment is clearly not justified.
*40It is settled that a general power of appointment may be so unlimited as to give its holder rights equivalent to absolute ownership. (Estate of Kuttler, supra, 160 Cal.App.2d 332, 338-339, and cases cited; see 2 Witkin, Summary of Cal. Law (1960) Real Property, § 136, p. 984.) Accordingly, had decedent in this case been given an unlimited power to appoint the corpus during his lifetime and an unlimited power to appoint any remaining corpus by will, his exercise of either power would not have been taxable. No ground whatever exists for reaching a different result when, as here, the power to invade corpus during decedent’s lifetime was not unlimited but required his sister’s concurrence in its exercise.
Cases cited by the executor differ in their facts and context and are not persuasive. For example, in Estate of Johnson (1965) 233 Cal.App.2d 785 [43 CaLRptr. 913], the language of the trust instrument gave the trust property to the trustor’s daughter free of the trust upon the death of his wife.
Our conclusion that decedent held nothing more than a power of appointment renders it unnecessary to consider contentions concerning the effect of an order of partial distribution made by the probate court before the making of the order fixing inheritance tax.
The order appealed from is affirmed.
Wright, C. J., and McComb, J., Peters, J., Tobriner, J., and Mosk, J., concurred.