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MATTER OF JOHNSON

32 A.D.2d 239 (1969)

In the Matter of the Accounting of Marine Midland Trust Company of the Mohawk Valley, as Trustee under The Will of Herman I. Johnson, Deceased. Mabel C. Jones, Appellant. William W. Rowley et al., Respondents

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

June 27, 1969.

Attorney(s) appearing for the Case

Penberthy, De Iorio & Rayhill (Francisco Penberthy of counsel), for appellant.

Felt, Fuller, Hubbard & Hopkins (Joseph T. Hopkins of counsel), for Elizabeth L. Light, respondent.

Marketos, Rossi & Capecelatro, for William W. Rowley and another, respondents.

Paul Scalzo, guardian ad litem for possible unknown heirs, infants and incompetents, respondents.

MARSH, MOULE and BASTOW, JJ., concur with WITMER, J.; GOLDMAN, P. J., dissents and votes to reverse the decree in opinion.

WITMER, J.

This is an appeal from a decree construing the Eleventh paragraph of the will of Herman I. Johnson, deceased, as requiring distribution of the remainder of the trust fund therein created, to the blood relatives of the testator. The testator executed his will in 1906 and died in 1909, leaving an only child Wallace B. Johnson who was 17 years old when the will was admitted to probate in 1909. In paragraph...

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