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MATTER OF WELLES

9 N.Y.2d 277 (1961)

In the Matter of the Construction of the Will of Benjamin S. Welles, Deceased. Marian K. Frelinghuysen et al., Appellants; William M. Cruikshank et al., as Trustees under the Will of Benjamin S. Welles, Deceased, et al., Respondents.

Court of Appeals of the State of New York.

Decided March 23, 1961.

Attorney(s) appearing for the Case

Thomas B. Gilchrist, Jr., and Thomas B. Gilchrist for appellants.

Edward R. Finch, Leon Schaefler and Nancy E. Le Blanc for Emily W. Robbins, Ethel K. Anderton and B. Sumner Welles, respondents.

Charles H. Stoll, as special guardian for infants, in person, and Aaron L. Rochman for Charles H. Stoll, respondent.

Richard S. Emmet, John L. Merrill, Jr., and Eunice M. O'Neill for William M. Cruikshank and Bank of New York, respondents.

Judges FROESSEL, VAN VOORHIS and FOSTER concur with Judge DYE; Judge BURKE dissents in an opinion in which Chief Judge DESMOND and Judge FULD concur.

DYE, J.

As we read this will, it seems clear that the testator intended what he said when he directed that the remainder of the Harriet trust be distributed "equally among all my grandchildren then living". This will was made in 1892 and a codicil in 1898. It is reasonable to suppose that the testator employed the term "grandchildren" to designate a class as it was then understood, which he limited to those "then...

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