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MATTER OF FLYER

29 A.D.2d 8 (1967)

In the Matter of the Construction of The Will of Jacob Flyer, Deceased. Phyllis Kavett, as Trustee, et al., Appellants; Jeannette G. Leavitt, as Committee of the Incompetent, Elsie Flyer, et al., Respondents

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

November 30, 1967.

Attorney(s) appearing for the Case

Herbert Monte Levy for appellants.

Richard E. Leavitt of counsel (Leavitt & Leavitt, attorneys), for Jeannette G. Leavitt, respondent.

STEVENS, J. P., and CAPOZZOLI, J., concur with McNALLY, J.; McGIVERN, J., dissents in opinion, in which STEUER, J., concurs.

McNALLY, J.

This appeal brings up for review the construction of a testamentary trust for the benefit of testator's widow. The will is dated July 25, 1960. Testator died August 10, 1964. His widow for some time prior to July 25, 1960, was and is totally disabled and hospitalized. She is now incompetent and an inmate of Pilgrim State Hospital.

The trust provision is as follows: "to pay * * * or to use for...

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