Gordon v. Posner

ADKINS, Judge. The issue in this case is who should bear federal and state estate taxes for the estate of Rose Posner (“Rose”) attributable to a $4.9 million Marital Trust that was created under the will of Rose’s late husband. Jean Posner Gordon, M.D. and Judith Geduldig, appellants and cross-appellees, contend that the trial court erred in concluding that the Maryland Uniform Estate Tax Apportionment Act, Maryland Code (1988, 1997 Repl.Vol.), section 7-308 of the Tax General Article (“TG”) (the “Tax Apportionment Act”) applies, and requires payment of a portion of the tax from their interests in the Marital Trust. We shall hold that the trial court was correct when it determined that Rose did not elect to opt out of the Tax Apportionment Act in her will or Revocable Trust.

FACTS AND LEGAL PROCEEDINGS Nathan Posner (“Nathan”) died on April 21, 1975, survived by his wile, Rose, and his three children: daughters Judith Geduldig and Jean Posner Gordon (the “Daughters”) and son David B. Posner, M.D. (“David”). Rose died 21 years later, on October 28, 1996. David was appointed personal representative of Rose’s estate.

Nathan left a will devising one-half of his estate to a trust for the benefit of Rose (the “Marital Trust”), but omitting the clauses expressing the terms of the trust. The absence of trust terms created doubt as to whether the Marital Trust would qualify for the federal estate tax marital deduction, which would enable Nathan’s estate to defer taxes on the assets in the Marital Trust until the death of Rose. At the time of Nathan’s death, in order to qualify a trust for the ⁴⁰⁶ surviving spouse’s benefit as a marital trust, the spouse had to be given the right to all income, and a general power of appointment over the trust assets. See 26 U.S.C. § 2056 (1981), amended by Pub.L. No. 97-34, § 403 (d)(1).

Although Nathan’s will did not otherwise provide for either the income interest or the power of appointment, it did have a marital deduction “savings clause.” This clause provided: Anything in this Will to the contrary notwithstanding, ... my Trustee shall not have or exercise any authority, power or discretion over the Marital Trust or the income thereof, or the property constituting the same, nor shall any payment or distribution by my Trustee be limited or restricted by any provision of this Will, which would in any way (a) adversely affect the qualification of the Marital Trust, (b) prevent my estate from receiving the benefit of the maximum marital deduction, or (c) affect the right of my said wife to all income therefrom or her right to dispose of the principal and income thereof in the amount and to the extent necessary to qualify the Marital Trust for the marital deduction for Federal estate tax purposes ... The balance of Nathan’s estate, after the bequest to the Marital Trust, passed to a residuary trust, which eventually passed in equal parts to David, and the Daughters. James P. McDonagh, appellee, serves as trustee of the Marital Trust. Notwithstanding the omissions in Nathan’s will, his personal representative claimed the marital deduction for the assets passing to the Marital Trust on Nathan’s federal estate tax return, and attached a copy of Nathan’s will to that return.

The Internal Revenue Service (the “IRS”) audited the return, but did not question the deductibility of the Marital Trust. Nearly twenty one years after her husband’s death, on January 3, 1996, Rose executed a will which purported to exercise her power of appointment over the Marital Trust, directing that its assets be paid to an inter vivos Revocable Trust (the “Revocable Trust”) that had been created on the same day. In her will, Rose gave one hundred dollars to appellant Geduldig, and a photograph to appellant Gordon, ⁴⁰⁷ stating, with respect to each, that the bequest represented her “entire inheritance.” Rose’s will directed that the balance of her probate estate would pass to the Revocable Trust, to be disposed of according to its terms. The Revocable Trust included gifts of certain tangible personal property to relatives and to a charity.

It also directed payment of sizable specific amounts to David, to David’s wife, to friends, to several charities, to a trust for the benefit of Rose’s sister, and to a trust for the benefit of David’s children. The Revocable Trust also directed payment of only one hundred dollars to each of the Daughters, and recited, with respect to each, that this sum was her “entire distribution from this Trust.” The balance, if any, passed to David. Rose transferred most of her assets to the Revocable Trust during her lifetime. At her death in October 1996, the Revocable Trust was valued at $10,756,659.

In a suit filed in the Circuit Court for Baltimore County, Case No. 97-1002, on January 31, 1997 (the “Prior Litigation”), the Daughters challenged their mother’s right to exercise a power of appointment over the Marital Trust, contending that their father’s will did not grant her a general testamentary power of appointment. On July 24, 1997, before that court ruled in the Prior Litigation, David paid the estate taxes for Rose’s estate, including taxes attributable to inclusion of the Marital Trust in her estate. Less than three weeks after the tax was paid, the circuit court held, on cross-motions for summary judgment, that Rose had an inter vivos power of appointment only, and directed that the assets from the “Marital Trust therefore revert to [Nathan] Posner’s estate to be distributed according to the residuary clause in his Will.” Under this judgment, the Daughters would receive two-thirds of the Marital Trust and David would receive one-third. On appeal, this Court held that Rose did not have a testamentary power of appointment over the assets of the Marital Trust, and affirmed the trial court.

In dicta, we also stated that the language of Nathan’s will was “insufficient to grant ⁴⁰⁸ Rose Posner either an inter vivos or a testamentary power of appointment.... ” On July 21, 1999, the Daughters filed the complaint in this suit, in the Circuit Court for Baltimore City, against their brother and the trustee of the Marital Trust. They asserted that the trustee of the Marital Trust refused to distribute the Trust assets because he was concerned that David might file a claim against the Marital Trust for contribution to the federal estate taxes that David had paid. The Daughters sought declaratory relief, asking the court to rule that David was not entitled to claim any contribution from the Marital Trust for taxes that he paid. In response, David filed an answer and counterclaim for contribution, seeking judgment for the amount of the Maryland and federal estate taxes paid with respect to the Marital Trust, together with pre-judgment interest.

On cross-motions for summary judgment, the circuit court ruled that the three Posner children, as beneficiaries of the Marital Trust, must bear responsibility for the federal and Maryland estate taxes paid on the Marital Trust assets. The court ordered each of the Daughters to contribute $711,740.30 in federal tax and $193,212.72 in Maryland estate tax. The court declined to grant pre-judgment interest. The Daughters appealed from this judgment, and Posner cross-appealed over the denial of pre-judgment interest.

After this Court’s decision in the Prior Litigation, David filed with the IRS a claim for a refund of $2,909,000, representing the taxes that were attributable to the Marital Trust. On July 16, 2001, while this appeal was pending, the IRS issued a technical advice memorandum, stating its position that the Marital Trust was includable in Rose’s gross estate for federal tax purposes. Both Rose’s will and her Revocable Trust contained provisions addressing the payment of estate taxes. We will describe these more fully in our discussion. ⁴⁰⁹ DISCUSSION I. Rose Posner Did Not Opt Out Of The Tax Apportionment Aet The Tax Apportionment Act sets forth how the federal estate tax and the Maryland estate tax shall be apportioned among the persons interested in an estate.

It provides that “apportionment shall be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate.” TG § 7-308(b). A “ ‘Lp'lerson interested in the estate’ means any person who is entitled to receive or has received ... any property or interest in property included in the taxable estate of the decedent.” TG § 7-308(a)(4). Under the statutoiy formula, the taxes on the Marital Trust would be paid from the interest of each person in that Trust. In other words, the Daughters would bear their proportionate share of the taxes attributable to the Marital Trust property, rather than having all the estate taxes paid by the residuary beneficiaries of Rose’s probate estate or Revocable Trust.

As might be expected, the statute affords the testator an opportunity to opt out of the statutory directive. The operative language of the statute provides that it will apply “except as otherwise provided in the will or other controlling instrument!.]” TG § 7-308(k). In order to effectively opt out of the Tax Apportionment Act, however, the directive not to apportion must be “plainly stated in the will.” Johnson v. Hall, 283 Md. 644, 649 , 392 A.2d 1103 (1978). In Johnson , the Court of Appeals joined what it described as “a small minority of courts” requiring explicit language stating an intention not to apportion, see id. at 651 , 392 A.2d 1103 , although “[n]o magic or mystical word or phrase is required.” Id. at 655 , 392 A.2d 1103 .

The Daughters make a number of arguments regarding why the terms of Rose’s will dictated that the Marital Trust should ⁴¹⁰ not share in the estate tax burden, and we address each of them in our discussion below. The standard of review for a grant of summary judgment is whether the trial court was “legally correct.” See Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 204 , 680 A.2d 1067 (1996). Our first step is to review the established principles of will construction, and then examine the pertinent text of Rose’s will. The “cardinal principle of construction of wills [is] that the intention of the testator be carried out as deduced from the ‘four comers’ of the will.” Wesley Home, Inc. v. Mercantile-Safe Deposit & Trust Co., 265 Md. 185, 198 , 289 A.2d 337 (1972).

The “testator’s intent, when clearly expressed in a testamentary document, must prevail.” Veditz v. Athey, 239 Md. 435, 445 , 212 A.2d 115 (1965); accord Emmert v. Hearn, 309 Md. 19, 23 , 522 A.2d 377 (1987)(“paramount concern” is to carry out testator’s intent). The entire will must be considered, not merely selective words in a vacuum. “When interpreting a will, we must gather the intention of the testator from the language of the entire will.” Jacob v. Davis, 128 Md.App. 433, 451 , 738 A.2d 904 (1999), cert. denied, 357 Md. 482 , 745 A.2d 436 (2000). The court must avoid a ridiculous result that would defy the intention of the testator. If the words of a will “are susceptible of two constructions, one of which would produce an absurd result and the other would carry out the testator’s intention, the latter construction should be adopted.” Gideon v. Fleischmann, 193 Md. 203, 207 , 66 A.2d 403 (1949).

Turning to Rose’s will, we examine two clauses in the will that are pertinent to Rose’s intentions with regard to the payment of taxes. Item Second provides: I direct that the full amount of all estate, inheritance, succession and transfer taxes and any and all other governmental charges, of whatever nature, which may be lawfully assessed as a consequence of my death ... shall be paid by my Personal Representative out of the general assets of my ⁴¹¹ estate, without the right of reimbursement therefor whatever from any person or corporation. The Daughters would have us look only at Item Second, and interpret that item to mean that Rose directed that the taxes attributable to the Marital Trust would not be paid by that Trust, but rather by her probate estate. As we set forth above, however, we are required to look at the entire will, see Jacob, 128 Md.App. at 451 , 738 A.2d 904 , and thus we also turn to Item Fifth, the only other relevant portion of Rose’s will.

It provides, in pertinent part: I give, devise and bequeath all of the rest, residue and remainder of my estate, real and personal, of whatsoever kind, nature and description and wheresoever the same may be situate and howsoever acquired, including all assets which are subject to my power of appointment pursuant to the Marital Trust created under Item Two of the Last Will and Testament of my late husband, Nathan Posner and any and all other property over which I may have power of testamentary disposition, unto DAVID B. POSNER, as Trustee of the Rose B. Posner Revocable Trust Agreement dated January 3, 1996 to be held, managed and distributed in accordance with the terms and conditions recited therein. Examining these two items of the will, we now ask what Rose intended by the words “general assets of my estate.” Specifically, we ask whether the Marital Trust was intended to be included within those words, or whether it was intended to be exonerated from the payment of estate taxes. We do not consider the words in Item Second to be clear. They would have been clearer, for example, if Rose had said that the taxes should be paid from her probate estate, which would exclude both her Revocable Trust and the Marital Trust.

Item Five, however, adds significant clarification. There, she explicitly referred to “my estate,” and specified that her estate “includ[ed] all assets which are subject to my power of appointment pursuant to the Marital Trust created under [my husband’s will].” ⁴¹² Further evidence of Rose’s intent is found in her Revocable Trust. In Article VII of that Trust, titled “Payment of Taxes, Debts and Expenses,” Rose, as settlor, wrote: Upon the death of Settlor, the Trustees shall follow any directions of the Personal Representative of Settlor’s probate estate regarding payment of any Federal Estate ... taxes, debts, and other valid claims and expenses which are enforceable against Settlor’s estate. If there are no such directions from the Personal Representative, the Trustee, in the Trustee’s discretion, is authorized to pay the Settlor’s debts outstanding at the time of Settlor’s death____ Such debts may include valid death taxes and other governmental charges imposed under the laws of the United States or of any State or country by reason of such death, including interest and penalties attributable to the trust estate arising because of the Settlor’s death[.] Neither party has asserted that we should not consider the terms of the Revocable Trust in determining Rose’s intent regarding apportionment of estate taxes, and we consider it appropriate to do so.

The Tax Apportionment Act, in section 7 808(k), allows the testator to elect out of the act by providing “otherwise ... in the will or other controlling instrument.” Md.Code (1974, 2001 Repl.Vol.), section 4-411(b) of the Estates and Trusts Article (“ET”), renders valid a bequest to an inter vivos trust, even though the trust was not executed according to the strictures of ET § 4-102, requiring the attestation of two witnesses, and even though the trust is subject to amendment or modification after the will is executed. Because Rose specifically bequeathed the residue of her estate to the Revocable Trust, to be held, managed, and distributed in accordance with its terms, we conclude that the Revocable Trust becomes a “controlling instrument” for purposes of the Tax Apportionment Act. Thus, it is clear that Rose intended that estate taxes would be paid not just from her probate estate, but also from the assets of the Revocable Trust, which she intended would ⁴¹³ receive the assets of the Marital Trust. Moreover, there is nothing in the Revocable Trust to suggest that Rose intended that the Marital Trust assets, once received by the Revocable Trust, would be segregated from the other assets in that Trust, or shielded from the payment of estate taxes.

The Daughters agree, to some extent. They posit that “[t]he companion Revocable Trust provisions worked in conjunction with the will to require that the taxes be paid from the probate estate and Revocable Trust.” They still see the Marital Trust, however, as a “person” from whom David could not recover taxes, arguing that “Rose’s Will and Revocable Trust obligated [David] to draw upon the assets of her probate estate and Revocable Trust to the extent necessary to enable Rose’s general estate to pay taxes without reimbursement from any person.” The problem with the Daughters’ argument is that in Item Five of her will, Rose specifically expressed her intent that the Marital Trust would be part of the Revocable Trust. Once this blending occurs, there is no reason why Item Second should be interpreted to direct non-reimbursement for taxes from the Marital Trust, but not non-reimbursement from the Revocable Trust. The Daughters offer out-of-state cases In Re Estate of Cline, 258 Kan. 196 , 898 P.2d 643 (1995), and Wkitbeck v. Aldrich, 341 Mass. 326 , 169 N.E.2d 882 (1960), to support their contention that the term “general assets of my estate” does not generally mean trust assets subject to a power of appointment.

Both of these cases are distinguishable. In Cline, the residuary beneficiaries of an estate also sought to apportion estate taxes over the entire gross estate pursuant to an apportionment statute. The decedent had a power of appointment over a marital trust, and her will directed that all taxes be paid “out of my general estate as part of the expense of the administration thereof with no right of reimbursement from any recipient of any such property.” Cline, 898 P.2d at 645 . The decedent exercised her power of appointment and directed that one-fifth of the principal and undistributed income in the trust go to the residuary beneficiary, and four- ⁴¹⁴ fifths to parties unrelated to the decedent.

The parties disputed what the decedent meant by “my general estate,” and the court interpreted it to mean “residuary estate.” Quoting a Pennsylvania case, the Cline court reasoned: “The phrase ‘general estate’ is customarily used as meaning the entire estate held by a person in his individual capacity. If he holds property in some other capacity, such as, e.g., a trustee, or if he has the testamentary power to dispose of some other property by appointment, that other property is not a part[ ] of his ‘general estate.’ ” Id. at 648 (quoting Shipley’s Estate (No. 2), 337 Pa.580, 12 A.2d 347, 349 (1940)). The Cline court also quoted a line of New York cases holding that the term “general estate” usually means the residuary estate. See id. at 647.

Based on these cases, the Kansas court concluded: The term “general estate” in the will provision directing that all taxes imposed by reason of her death, whether or not such property passes under the will or otherwise, should be paid out of the testatrix’ “general estate,” means that the taxes due by reason of the testatrix’ death are to be imposed on the residuary estate.... If Article I of Cline’s will was interpreted as residuary beneficiaries suggest, the tax exoneration clause in Article I becomes meaningless. Id. at 649. We see two crucial differences between Cline and this case.

First, the decedent’s will in Cline did not contain the language in Item Fifth of Rose’s will, specifying that the “rest, residue and remainder of [her] estate” included “all assets which are subject to my power of appointment pursuant to the Marital Trust[.]” Even if we were to follow the Cline and New York rule that “general estate” usually means “residuary estate,” we think that Rose’s language in Item Fifth makes it clear that when she directed that the taxes be paid from the “general assets of my estate,” she intended to include the Marital Trust among those assets. In other words, she expressed a clear intent to deviate from the usual meaning of the term “general assets of my estate.” Second, the testator in ⁴¹⁵ Cline did not explicitly express her intent, as Rose did in her Revocable Trust, that estate taxes should be paid from that trust. Nor did Cline address an analogous situation involving the testator’s direction that the revocable trust was to contain all of the assets from a marital trust. The will in Whitbeck provided that [a]ll estate, inheritance, legacy, succession or transfer taxes ... with respect to all property taxable ... by reason of my death whether or not such property passes under this will and whether such taxes be payable by my estate or by any recipient of any such property, shall be paid by my executor out of my general estate ... with no right of reimbursement from any recipient of any such property.

Whitbeck, 169 N.E.2d at 883 . The residuary beneficiaries argued that the decedent, in her tax clause, did not intend to refer to taxes attributable to the Marital Trust over which she held a power of appointment, but rather to refer only to the taxes “imposed upon the passing of her own property.” Id. at 884. The Whitbeck court held that: Nothing in Emily’s will itself shows that the words in the tax clause were not used in their ordinary sense. We may not depart from that sense to give effect to what may be guessed was her intention.

Id. (citation omitted). In contrast to Whitbeck, we do have words suggesting that the phrase “general assets of my estate” was not limited, as it ordinarily may be, to Rose’s residuary estate. Rather, as we explained above, in Item Fifth of her will, and Article VII of her Revocable Trust, Rose made clear that she intended that the taxes would be paid from the Revocable Trust, which expressly included the Marital Trust.

The Daughters view the language in Article VII of Rose’s Revocable Trust differently. They argue: [W]hen Rose Posner’s Will and Revocable Trust are read together, she directed [David], as Trustee of the Revocable Trust, to follow the instructions of [David], as Personal Representative, with respect to the payment of estate taxes. ⁴¹⁶ As Personal Representative, [David] was bound by Item SECOND of his mother’s Will not to seek reimbursement from the “marital trust.” We are not persuaded by this argument for the same reasons explained above — our interpretation of Items Second and Fifth of Rose’s will. Rose drew no distinction in her will or her Revocable Trust between the assets of the Marital Trust, the assets held in her probate estate, and the assets transferred to her Revocable Trust during her lifetime. At her death, they were to be held in one pot, and disposed of according to the terms and conditions of the Revocable Trust.

The Trial Court’s Interpretation Of Rose’s Will Does Not Render Item Two Meaningless Citing Johnson , the Daughters next invoke the rule that “ ‘words in a will are never to be rejected as meaningless or repugnant if by any reasonable construction they may be given effect and made consistent and significant.’ ” Johnson, 283 Md. at 654 , 392 A.2d 1103 (quotation marks and citations omitted). They argue that Rose’s direction in Item Two that the Personal Representative does not have the “right of reimbursement ... [for estate taxes] from any person or corporation” has no meaning if it is not applied to exempt the Marital Trust from liability for any estate taxes, because the will makes no other bequests. We disagree, and find the answer to this contention in the Revocable Trust. Aside from charitable bequests, the Revocable Trust contains specific bequests to Rose’s daughter-in-law (silver and $80,000), certain of her grandchildren (tangible property), her son David ($2,500,000), two friends ($10,000), and a trust for her sister ($100,000).

Rose reiterated, in the Revocable Trust, her intent that her monetary bequests be made “net of any and all applicable ... taxes.” We interpret Item Two in the will to mean that her specific bequests in the Revocable Trust shall be made free of any taxes. Thus, our interpretation does not render Item Two meaningless or violate the rule of construction. ⁴¹⁷ The Daughters Mistakenly Rely On Cases That Do Not Involve Application Of The Tax Apportionment Act With his last words at oral argument, the Daughters’ counsel exhorted us to carefully read In Re Estate of Breault, 29 Ill.2d 165 , 193 N.E.2d 824 (1963), and we have done so. The decedent’s probate estate in Breault was insolvent, and the dispute was whether assets over which he held a power of appointment were subject to creditor claims against his estate. The issue was “whether, by virtue of the manner in which [the decedent’s] power of appointment was exercised, the appointive property became an asset of and passed through [the decedent’s] estate.” Id. at 826.

Thus, Breault differs from this case because David is not contending that any portion of the Marital Trust became part of Rose’s probate estate. The Daughters appear to advance Breault, however, to defend against David’s argument that Item Fifth of Rose’s will created a “pot” which blended the Marital Trust with the residuary estate, and paid both to the Revocable Trust. In Breault, the will clause relied upon by the creditors provided: “I give, devise and bequeath all the rest, residue and remainder of my property, of whatsoever character and wheresoever situate, be it real, personal or mixed, belonging to me at the time of my death, or over which I have the power of disposition: to Harold L. Feigenholtz ... Trustee[.]” Id. at 826.

Recognizing that “the intention of the donee to appoint to his own estate must be expressly stated or clearly implied,” the Breault court refused to find that the appointive assets became part of the decedent’s probate estate. Id. at 830. It further reasoned: Some jurisdictions imply the intention where the testator masses, blends or merges, (as it is variously called,) his own personal property with the appointed property for all purposes (viz., payment of debts, taxes, legacies, etc.,) and it is the contention of the appellees that this was accomplished here by the third paragraph of [the decedent’s] will. How ⁴¹⁸ ever, we do not find this to be so.

The only test we have found for determining whether there has been a blending of the two estates sufficient to imply appointment' to the donee’s estate is ... as follows: The mere fact that the appointed estate is given to the same persons who take the residue of a testator’s individual estate is not the test to be applied in determining whether there has been a blending of the two estates, but the real test under our line of decision[s] is whether the testator has treated the two estates as one for all purposes, and manifested an intent to commingle them. Quite obviously, that test cannot be met here, for [the decedent], by the first two paragraphs of his will directed the payment of debts and taxes before any attempt at blending or commingling occurred. Under the circumstances there cannot be said to have been the blending for all purposes needed to imply the intent to appoint to his own estate. Breault, 193 N.E.2d at 830-831 (quotation marks and citations omitted).

The Daughters would have us adopt the Breault reasoning by analogy, and conclude that because Item Two of the will, directing the payment of taxes, preceded Item Five, blending the Marital Trust with the residue and directing the payment of both to the Revocable Trust, Rose clearly elected to opt out of the Tax Apportionment Act. We are not persuaded by this argument because we consider it inconsistent with the Court of Appeals’ decision in Johnson , which directs that an election out of the Tax Apportionment Act must be “plainly stated.” See Johnson, 283 Md. at 649 , 392 A.2d 1103 . The Breault court followed precedent requiring that the intention to blend the probate estate and appointive assets must be “expressly stated or clearly implied.” 193 N.E.2d at 830 . Thus, under that precedent, in the absence of a clear statement, the estates will not be blended.

Here, we have the opposite presumption — in the absence of a clear statement, the Tax Apportionment Act applies. In addition, we have Rose’s direction in Article VII of the Revocable Trust that estate taxes shall be paid out of the Revoca ⁴¹⁹ ble Trust, if directed by the Personal Representative. This expression defeats the Daughters’ contention that the placement of the tax clause before the clause blending the probate and appointive assets demonstrates that no taxes were to be paid from the blended assets. The Daughters also rely on Shriners Hosp. v. Citizens Nat’l Bank, 198 Va. 130 , 92 S.E.2d 503 (1956), a case similar to Breault, in which the court held that property over which the testator held a power of appointment was not subject to the payment of debts, expenses, and taxes.

Shriners is distinguishable on several grounds. Like Breault, Shriners did not involve application of a statute comparable to the Tax Apportionment Act, and is distinguishable on that basis. The will in Shriners also contained particular language, not present here, indicating that when the testator spoke of “my general fund,” he was referring to his probate estate. See id. at 510.

Nor did the will in Shriners have language comparable to that contained in Item Fifth of Rose’s will, or make a bequest of the appointive assets to a revocable trust, with language directing payment of taxes from that trust. Shriners also relied on language in the testator’s will providing that, “In the event my estate is not sufficient to pay all the taxes ... and the various bequests made by me in this ... Will, ... then, ... the various bequests and trusts shall be reduced proportionately.” Id. at 507. It considered that language indicative that the testator’s “individual estate is the primary fund for that purpose.” Id. at 510.

Rose’s will does not contain comparable language. Rose’s Lack Of A Power Of Appointment Over The Marital Trust Did Not Deprive Her Of The Power To Direct Whether Taxes Would Be Paid From The Marital Trust Pursuant To The Tax Apportionment Statute The Daughters would have us ignore, and treat as a nullity, all expressions in Rose’s will about the Marital Trust, because this Court, in a prior case, determined that she did not possess a power of appointment over the Marital Trust. Vigorously, they assert that David “cannot cite a single case in the country ⁴²⁰ standing for the proposition that a testator’s intent on tax apportionment or any other subject can be divined by referring to an invalid attempt to exercise a non-existent power.” Although we have found no cases addressing precisely this issue, we are persuaded that Rose’s expression of intent with regard to the treatment of the Marital Trust is not a nullity for purposes of the Tax Apportionment Act. In other words, the fact that she had no power to appoint the Marital Trust does not detract from her expression of intent as to the allocation and payment of taxes attributable to that trust for purposes of the Tax Apportionment Act.

The crucial concept, ignored by the Daughters, is that Rose did not need to affirmatively direct payment of estate taxes from the Marital Trust. The Tax Apportionment Act directs such payment. Rather, we examine Rose’s will and Revocable Trust only to see whether she took affirmative action to exempt the Marital Trust from these taxes. See Johnson, 283 Md. at 655 , 392 A.2d 1103 .

Thus, her lack of power to appoint the Marital Trust assets is not controlling, because her authority to determine whether the Trust pays estate taxes derived not from the terms of the Trust, but from the Tax Apportionment Act. Interpreting The Will To Apportion The Taxes Does Not Rest On The Doctrine Of Mistake The Daughters argue that courts do not reform a will because of a mistake, and that David seeks to reform Rose’s tax clause because it is inconsistent with her general intention to disinherit her Daughters. The Daughters posit that David’s approach wrongly requires “a court to speculate what his mother would have done if she realized that ... she had no power to take her husband’s trust away from the three children!.]” They urge that “[t]he correct technique, as the Johnson v. Hall [C]ourt stated, is to discern what Rose Posner meant by the words she used in Item SECOND.” “Judicial remaking of wills,” the Daughters assert, “whether avowed or under the guise of interpretation and construction, involves abandonment of the Statute of Wills. ET § 4-102.” ⁴²¹ We do not agree that, in affirming the trial court, we are remaking Rose’s will.

Rather, we are performing interpretation and construction, not reformation. In asking us to look only at Item Second of the will, and interpreting that in isolation, the Daughters seek to have us ignore one of the most basic doctrines applicable to construction of a will or other document — that we look at the entire will, not selective words in a vacuum. See Jacob, 128 Md.App. at 451 , 738 A.2d 904 . The language in Item Second should not be taken in isolation, but should be interpreted in light of Item Five of the will and Article VII of the Revocable Trust.

As previously discussed, these clauses, when interpreted together, make it clear that Rose intended that if David elected, the estate taxes were to be paid out of the Revocable Trust, including the assets of the Marital Trust. To support their argument, the Daughters rely on Frank v. Frank, 253 Md. 413 , 253 A.2d 377 (1969), and Noble v. Bruce, 349 Md. 730 , 709 A.2d 1264 (1998). Again, these cases are distinguishable. In Noble , the residuary beneficiaries alleged that an attorney negligently prepared the decedent’s will so that all taxes would be paid out of the residuary estate, contrary to the decedent’s intent.

The will directed that taxes should be paid from the residuary estate. The residuary beneficiaries sued, claiming that the testator intended that taxes on a large block of stock bequeathed to other persons would be paid out of the stock itself. In support of this contention, they relied on a letter from the attorney to the testator pointing out the size of her “tax problem,” and saying: “I am all the more pleased that we have made the decision to have the bulk of the ... stock pay its own share of that tax.” Noble, 349 Md. at 736 , 709 A.2d 1264 . Although the testator later added codicils and a new will, all prepared by the defendant attorney, she did not change the clause regarding payment of taxes.

Applying a strict privity rule, the Court of Appeals affirmed the grant of a motion to dismiss, on the grounds that the residuary beneficiaries lacked standing to sue the law firm. ⁴²² See id. at 753-58 , 709 A.2d 1264 . “Here, there is no admissible evidence contradicting the supposition that the testators intended their contractual relationships .with their attorneys to benefit themselves in planning their estates[.]” Id. at 754 , 709 A.2d 1264 . The Court rejected the residuary beneficiaries’ argument that they should be able to introduce extrinsic evidence that the testator’s intent was different from that expressed in the will. See id. at 755 , 709 A.2d 1264 . This “result would clearly reform the will,” because “[i]f the [residuary beneficiaries] were successful, the will would in effect be rewritten so that the taxes would not be paid out of the residuary estate.” Id. at 755-56 , 709 A.2d 1264 .

Noble is easily distinguished. Unlike this case, in Noble , there was no language in the will that supported the plaintiffs’ assertion that the tax should be paid out of the residuary trust. In Noble , the plaintiffs were trying to introduce extrinsic evidence to show intent to pay taxes elsewhere. We do not rely on extrinsic evidence here, but rather, specific language in Item Five of the will. 1 In Frank , the issue was whether the decedent had the power to appoint the assets in a marital trust.

On audit of the decedent’s estate, the IRS disallowed the marital deduction for federal estate taxes, because the words of the spouse’s will creating the marital trust were not sufficient to grant the decedent’s spouse a general power of testamentary appointment. Missing from the will was language indicating a specific power to appoint the assets to her own estate or to her creditors. In an apparent effort to qualify for the marital deduction, the widow “filed a bill against those who would take in the absence of appointment for a declaration as .to the nature and scope of the power of appointment,” and “whether she ‘has the power validly to appoint 50% of the trust [estate remaining at her death] to her estate or to her creditors.’ ” See Frank, 253 Md. at 414 , 253 A.2d 377 . ⁴²³ On appeal, the Court of Appeals held that the language used in the spouse’s will was insufficient to create a general power of appointment because Maryland law required that the appointee be given a power to appoint to her estate or to her creditors. That the draftsman of the will used those words thinking they meant more than they did and do and intending that should is not controlling.

Clear and ambiguous word[s] in a will must be given the meaning they customarily and normally have and it is from this