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MATTER OF BURCHELL (GARDNER)

278 A.D. 450 (1951)

In the Matter of the Application of Celestine A. Thomson to Compel Accounting by Lawyers Trust Company, as Successor Trustee under a Trust Created by Celestine A. Burchell Frank P. Nohowel, as Executor of Celestine A. Gardner (Formerly Celestine A. Burchell), Deceased, Appellant; Celestine A. Thomson et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

June 12, 1951.

Attorney(s) appearing for the Case

Frank P. Nohowel, in person as executor, appellant.

Walter M. Hinkle of counsel (Hardin, Hess & Eder, attorneys), for Celestine A. Thomson, Josephine M. Burchell, Janet Burchell, Joan Burchell and Josephine Burchell, respondents; Robert N. Errington for John A. Burchell, respondent.

Guy O. Walser of counsel (Howard J. Grace with him on the brief; Robbins, Wells & Walser, attorneys), for First National Bank and Trust Company of Bay Shore, N. Y., respondent.

DORE and CALLAHAN, JJ., concur; PECK, P. J., and SHIENTAG, J., dissent and vote to affirm.

VAN VOORHIS, J.

This appeal involves a construction of the will of Celestine A. Gardner made in 1943 as an exercise of her power of appointment over assets in a trust created by her under an indenture in 1891. The final order here under review judicially settles the accounts of the successor trustee under the indenture in such manner as to dispose of none of the trust assets as directed in the will except by the...

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