87 T.C. 599">*599 OPINION

Respondent determined a deficiency of $ 191,087 in the Federal estate tax of the Estate of John Russell Little. The only issue is whether the value of assets of a trust of which John Russell Little was a beneficiary and the sole trustee is includable in his estate under section 2041. ¹

1986 U.S. Tax Ct. LEXIS 53">*56 This case has been submitted under Rule 122. All of the facts have been stipulated and are found accordingly. ²

Petitioner Crocker National Bank is the executor of the Estate of John Russell Little. Petitioner's principal office was located in San Francisco, California, when the petition herein was filed. The Federal estate tax return here involved was filed with the District Director of Internal Revenue, San Francisco, California.

John Russell Little (hereinafter sometimes referred to as decedent) died on August 2, 1979. At the time of his death, 87 T.C. 599">*600 he was a beneficiary and the sole trustee of a testamentary trust (hereinafter sometimes referred to as trust) created by the will of his wife, Grace Schaffer Little (hereinafter sometimes referred to as Mrs. Little), who died on November 11, 1971. The pertinent provisions of the trust are as follows:

During the lifetime of John Russell Little, the trustee shall1986 U.S. Tax Ct. LEXIS 53">*57 pay to or apply for the benefit of John Russell Little, so much of income and principal of the trust estate as is necessary, in the discretion of the Trustee after taking into consideration to the extent the Trustee deems advisable, other resources of John Russell Little available to him outside of this trust, for his proper support, maintenance, welfare, health and general happiness in the manner to which he is accustomed at the time of the death of Grace Schaffer Little.

Decedent's gross estate, as computed on his estate's Federal estate tax return, did not include the value of the trust's assets, which the parties agree was $ 539,088.01 at the time of decedent's death. Respondent determined an estate tax deficiency of $ 191,087 after including the value of the trust's assets in decedent's estate under section 2041. ³

1986 U.S. Tax Ct. LEXIS 53">*58 Under the three paragraphs of section 2041(a), the value of property is included in a decedent's gross estate in three distinct situations. Since we hold that the value of the trust's assets are included in decedent's gross estate under section 2041(a)(2), we do not consider whether a like result would obtain under section 2041(a)(1) or section 2041(a)(3).

Section 2041(a)(2) states in relevant part, "The value of the gross estate shall include the value of all property * * * [to] the extent of any property with respect to which the decedent has at the time of his death a general power of appointment." Section 2041(b)(1) defines general power of appointment as a "power which is exercisable in favor of the decedent, his estate, his creditors, or the creditors of his estate." Section 2041(b)(1)(A) excepts powers which are "limited by an ascertainable standard relating to 87 T.C. 599">*601 the health, education, support, or maintenance of the decedent." ⁴

1986 U.S. Tax Ct. LEXIS 53">*59 For the section 2041(b)(1)(A) exception to apply, the power of appointment must be limited to a standard that meets two requirements. The standard must be ascertainable and the standard must relate to the decedent's health, education, support, or maintenance. Estate of Sowell v. Commissioner, 74 T.C. 1001">74 T.C. 1001, 74 T.C. 1001">1003 (1980), revd. on other grounds 708 F.2d 1564">708 F.2d 1564 (10th Cir. 1983).

Unless the section 2041(b)(1)(A) exception applies, the power held by decedent as sole trustee of the trust to invade income and corpus for his benefit is clearly a general power of appointment. We therefore must determine if the standard of "proper support, maintenance, welfare, health, and general happiness in the manner to which [decedent] is accustomed at the time of the death of [Mrs. Little]" is an ascertainable standard relating solely to the health, education, support, or maintenance of decedent. ⁵

1986 U.S. Tax Ct. LEXIS 53">*60 We look to State law to determine whether the standard relates solely to the health, education, support, or maintenance of the decedent. See Morgan v. Commissioner, 309 U.S. 78">309 U.S. 78, 309 U.S. 78">80 (1940); De Oliveira v. United States, 767 F.2d 1344">767 F.2d 1344, 767 F.2d 1344">1347 (9th Cir. 1985). Since Mrs. Little was a resident of California at the time of her death, California State law applies to the construction of the power held by decedent which was created by Mrs. Little's will. 767 F.2d 1344">De Oliveira v. United States, supra at 1347; Estate of Stober, 108 Cal. App. 3d 591">108 Cal. App. 3d 591, 166 Cal. Rptr. 628">166 Cal. Rptr. 628 (1980).

Petitioner argues that a California State court construing the standard would "limit it to refer to the the standard of support which the decedent enjoyed at the time of his wife's death." (Emphasis added.) Petitioner refers to Cal. Civ. Code sec. 2269 and In re Estate of Smith, 117 Cal. App. 3d 511">117 Cal. App. 3d 511, 172 Cal. Rptr. 788">172 Cal. Rptr. 788 (1981). Petitioner suggests that we 87 T.C. 599">*602 consider the language of Cal. Civ. Code sec. 2269 (West 1985) as substantially amended1986 U.S. Tax Ct. LEXIS 53">*61 subsequent to decedent's death. Since section 2041(a)(2) refers to powers held by decedent "at the time of his death," we consider the language of section 2269 of the California Civil Code as enacted in 1872 and in effect at the time of decedent's death. ⁶ This version of the statute does not support petitioner's contention.

In re Estate of Smith, 172 Cal. Rptr. 788">172 Cal. Rptr. at 790, in dicta, construed the following standard: "reasonable care, comfort, support and maintenance in accordance with the standard1986 U.S. Tax Ct. LEXIS 53">*62 of living as of the date of [the trustor's] death." Relying heavily on the language "in accordance with the standard of living as of the date of [the trustor's] death" the court held that the standard was ascertainable. ⁷1986 U.S. Tax Ct. LEXIS 53">*63 Although the standard employed by the trust contains similar language, neither that language nor In re Estate of Smith supports petitioner's contention, as both are relevant only to whether the standard is ascertainable, an issue which we do not decide. ⁸ See note 12 infra.

Having rejected petitioner's contention, we now consider whether a California State court would interpret the standard employed by the trust to relate solely to the health, education, support, or maintenance of decedent. Our research of California State law, as aided by the parties, has not revealed any case directly on point. Therefore, we will 87 T.C. 599">*603 consider the general rule of construing testamentary trusts under California State law. "A trust created by1986 U.S. Tax Ct. LEXIS 53">*64 will is properly controlled by the expressed intention of the testatrix [and] the particular language used is always important." In re Miller's Estate, 230 Cal. App. 2d 888">230 Cal. App. 2d 888, 41 Cal. Rptr. 410">41 Cal. Rptr. 410, 41 Cal. Rptr. 410">422 (1964). "A trustee must * * * follow all the directions of the trustor." Cal. Civ. Code sec. 2258 (West 1985). ⁹

We are convinced that a California State court properly applying these general rules would recognize that the standard employed by the trust does not relate solely to the health, education, support, or maintenance of the decedent. "Were [it] confronted with a dispute between the [widower] 1986 U.S. Tax Ct. LEXIS 53">*65 and the remaindermen over the propriety of an invasion, [it] would not adopt a grudging and narrow interpretation of [general happiness]." ¹⁰In re Estate of Nunn, 112 Cal. Rptr. 199">112 Cal. Rptr. 199, 112 Cal. Rptr. 199">204, 518 P.2d 1151 (1974) (using the quoted language to interpret "need"); Estate of Allgeyer, 60 Cal. App. 3d 169">60 Cal. App. 3d 169, 129 Cal. Rptr. 820">129 Cal. Rptr. 820, 129 Cal. Rptr. 820">823 (1976) (using the quoted language to interpret "comfort").

1986 U.S. Tax Ct. LEXIS 53">*66 We are convinced that a California State court would recognize that there are items which fall within the ambit of "general happiness," but which do not fall within the ambit of "health, education, support, or maintenance." Consider, for example, "travel." The California State Supreme Court87 T.C. 599">*604 has intimated that "travel" does not relate to "support, maintenance, or education." ¹¹In re Estate of Nunn, 112 Cal. Rptr. 199">112 Cal. Rptr. at 205. If it were necessary for decedent to travel to maintain the level of general happiness he enjoyed prior to his wife's death, he could invade the income and corpus of the trust to pay for such travel. Such an invasion is within the expressed intent of Mrs. Little: "the trustee shall pay to or apply for the benefit of [decedent], so much of income and principal * * * as is necessary * * * for his * * * general happiness in the manner to which he is accustomed at the time of the death of [Mrs. Little]." See 230 Cal. App. 2d 888">In re Miller's Estate, supra; Cal. Civ. Code sec. 2258 (West 1985).

1986 U.S. Tax Ct. LEXIS 53">*67 "Travel" is not the only example of a proper use of the assets of the trust that would not be proper if the power to invade was limited solely to decedent's health, education, support, or maintenance. A listing of other examples is not here necessary. That one exists is sufficient to show that the standard employed by the trust does not relate solely to decedent's health, education, support, or maintenance. Accordingly, we hold that the section 2041(b)(1)(A) exception to the definition of general power of appointment is not here applicable. ¹²

1986 U.S. Tax Ct. LEXIS 53">*68 Since none of the exceptions to general power of appointment apply, ¹³ we hold that decedent possessed, at the time of his death, a general power of appointment. The power of appointment was exercisable over the income and corpus of the trust. Respondent was therefore correct in including the value of the trust's assets in decedent's gross estate. Sec. 2041(a)(2).

Decision will be entered for the respondent.