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MATTER OF GAUTIER

3 N.Y.2d 502 (1957)

In the Matter of the Accounting of Franklin National Bank et al., Respondents, as Successor Trustees under the Will of Dudley G. Gautier, Deceased. Dudley G. Bird et al., Appellants; Robert M. Lewis et al., Respondents. (Appeal No. 1.) In the Matter of the Accounting of Franklin National Bank et al., Appellants, as Successor Trustees under the Will of Dudley G. Gautier, Deceased. Dudley G. Bird, Appellant; Robert M. Lewis et al., Respondents. (Appeal No. 2.)

Court of Appeals of the State of New York.

Decided December 5, 1957.

Attorney(s) appearing for the Case

Winthrop S. Emmet and Robert L. Augenblick for Dudley G. Bird, appellant in both proceedings.

William M. Kilcullen and John B. Kelly for George Gunderson, appellant in first above-entitled proceeding.

David S. Edgar, Jr., in person, E. George Lawkins and Frank Lawkins for David S. Edgar, Jr., and another, appellants in second above-entitled proceeding.

Gerard T. Shevlin and Alfred M. Ehrenclou for Robert M. Lewis and another, respondents in both proceedings.

Aaron B. Cohen, special guardian, for Frederic E. Lewis, Jr., and another, infants, respondent in both proceedings.

John R. Niesley and Leone D. Howell for Oliver W. Bird, III, and another, respondents in both proceedings.

Chief Judge CONWAY and Judges DESMOND, FROESSEL, VAN VOORHIS and BURKE concur with Judge FULD; Judge DYE dissents and votes to affirm.

FULD, J.

In this proceeding, brought to settle their accounts, the successor trustees under the will of Dudley G. Gautier requested and obtained a construction of the will. The controversy revolves about the term "surviving" as used in paragraph NINTH, subdivision (b), and calls upon us to say whether the essential survivorship refers to survival merely to the death of the testator, as the courts below held, or...

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