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MATTER OF BAUER

14 N.Y.2d 272 (1964)

In the Matter of the Final Accounting of Morgan Guaranty Trust Company of New York, as Trustee under an Indenture of Trust Made by Dagmar Bauer, Respondent. Rosanna Arnott, as Executrix of Gabriel Popp, Deceased, et al., Appellants-Respondents; Midland Bank Executor and Trustee Company Limited, as Executor of Dagmar Bauer, Deceased, Respondent-Appellant; Dr. Barnardo's Homes: National Incorporated Association, Respondent.

Court of Appeals of the State of New York.

Decided June 4, 1964.

Attorney(s) appearing for the Case

Andrew E. Ullmann, Edward F. McLaughlin and Robert Granville Burke for appellants-respondents.

Michael Alexander, Bernard B. Smith and Walter I. Nathan for respondent-appellant and Dr. Barnardo's Homes: National Incorporated Association, respondent.

Judges VAN VOORHIS, BURKE and SCILEPPI concur with Chief Judge DESMOND; Judges DYE and FULD dissent in separate opinions in each of which the other concurs and Judge BERGAN concurs in both.

Chief Judge DESMOND.

In 1917 Dagmar Bauer, then a resident of New York, executed in New York City an irrevocable trust indenture which stipulated that she should receive the life income and that the remainder should go to her husband. In the event her husband predeceased her, the principal was to be distributed to such person or persons as she appointed by her will and, failing a valid disposition in her will...

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