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MATTER OF URCHS

20 A.D.2d 291 (1964)

In the Matter of the Accounting of Chase Manhattan Bank, as Trustee of The Will of Emma Urchs, Deceased, Respondent. Tess L. Segel, as Executrix of Otonita U. Pope, Deceased, et al., Appellants-Respondents; Julia A. Wink, as Executrix of Beatrice Levy, Deceased, et al., Respondents-Appellants; Society of the New York Hospital et al., Respondents

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

February 27, 1964.

Attorney(s) appearing for the Case

David J. Levy of counsel (Monroe L. Friedman with him on the brief; Maass, Davidson, Levy, Friedman & Weston, attorneys), for appellants-respondents.

Peter C. McBean of counsel (Gerald A. Fix with him on the brief; Davis Polk Wardwell Sunderland & Kiendl, attorneys), for respondents-appellants.

John J. Loflin, Jr., of counsel (Edward K. Bachman and Leonard A. Blue with him on the brief; Kelley Drye Newhall Maginnes & Warren, attorneys), for the Society of the New York Hospital, respondent.

Arthur W. Graef for Chase Manhattan Bank, respondent.

Thacher Proffitt Prizer Crawley & Wood for the American Society for the Prevention of Cruelty to Animals, respondent.

BOTEIN, P. J., STEVENS and STEUER, JJ., concur in Per Curiam opinion; McNALLY and WITMER, JJ., dissent in opinion.

Per Curiam.

This is an appeal in an accounting and construction proceeding. The issue to be determined is whether lapsed or divested remainder interests in a testamentary trust upon termination shall be included in a disposition of the remaining residuary of the trust or treated as intestate property of the testatrix.

Since there is unanimity of the court that the remainder interests did not finally vest, that...

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