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MTR. OF BECKWITH

57 A.D.2d 415 (1977)

In the Matter of The Estate of Hugh T. Beckwith, Deceased. First-City National Bank of Binghamton, N.Y., as Trustee under The Will of Hugh T. Beckwith, Deceased, et al., Respondents; Barbara A. Moore, Appellant

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

May 26, 1977

Attorney(s) appearing for the Case

Coughlin & Gerhart (Edward S. Dermody and Gordon E. Thompson of counsel), for appellant.

Hinman, Howard & Kattell (C. Addison Keeler of counsel), for First-City National Bank of Binghamton, N.Y., respondent.

Levene, Gouldin & Thompson (John H. Hartman of counsel), for Tabernacle Methodist Church and another, respondents.

KANE and LARKIN, JJ., concur with SWEENEY, J.; KOREMAN, P. J., and MAHONEY, J., dissent and vote to affirm in an opinion by MAHONEY, J.

SWEENEY, J.

The facts are not in dispute. Hugh T. Beckwith executed his will on September 21, 1964. He died on August 28, 1968. We are specifically concerned with paragraph Sixth of his will which creates a marital deduction trust with a power of appointment in the following language:

"I give, devise and bequeath said amount to my Trustee hereinafter named, IN TRUST NEVERTHELESS, to hold, manage, invest and reinvest the same, to collect and receive...

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