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MATTER OF WISE

20 A.D.2d 55 (1963)

In the Matter of the Construction of The Will of Herbert A. Wise, Deceased. Bennett A. Cerf, as Trustee under Said Will, et al., Appellants; Sue Bayer et al., Respondents

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

December 12, 1963.

Attorney(s) appearing for the Case

Whitman Knapp of counsel (Henry Gale, Carl F. Rogge, Jr., and Stephen Friedman with him on the brief; Root, Barrett, Cohen, Knapp & Smith, attorneys), for Glen Boles, appellant.

Horace S. Manges of counsel (John M. Lewis and Philip T. Temple with him on the brief; Weil, Gotshal & Manges, attorneys), for Bennett A. Cerf and others, appellants.

Ludwig Teller, special guardian for Jonathan Cerf, infant, appellant.

Sheldon Oliensis of counsel (Lawrence Newman with him on the brief; Kaye, Scholer, Fierman, Hayes & Handler, attorneys), for Sue Bayer and others, respondents.

David I. Silverman of counsel (Jaffa & Silverman, attorneys), for Lyman Stansky, respondent.

McNALLY and STEVENS, JJ., concur with WITMER, J.; RABIN, J. P., and VALENTE, J., dissent and vote to affirm on the opinion of COX, S.

WITMER, J.

Certain beneficiaries under the will of Herbert A. Wise, deceased, appeal from the construction of said will made by the Surrogate. The issue is between two opposing groups of legatees with respect to the manner in which estate taxes are to be charged, i.e., whether they shall be paid from the entire estate before division thereof for distribution to beneficiaries, or be paid from the assets to be placed...

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