Majority
p. 851In the Matter of the Construction of the Will of Herman J. Muller, Deceased. Chase Manhattan Bank, as Trustee of the Trust Created under the Will of Herman J. Muller, Deceased, et al., Appellants-Respondents; Lily T. Behrens, Respondent-Appellant. Argued December 4, 1962; decided December 31, 1962.
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Daniel G. Tenney, Jr., and John J. Duffy for Chase Manhattan Bank, appellant-respondent.
Henry H. Sternberg, special guardian for infants Carol P. Rigo and others, appellant-respondent.
Samuel Miehelman and Robert F. Welch for respondent-appellant.
Order affirmed, Avith costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.
Concur: Chief Judge Desmond and Judges Dye, Ftjld, Burke and Foster. Judge Froessel dissents and votes to reverse and to reinstate the decree of the Surrogate upon the dissenting
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opinion at the Appellate Division, and Judge Van Vookhis dissents and votes to reverse the order of the Appellate Division and to direct the trustee to allocate all 660 shares of the new $15 par value stock of the Ohio Edison Company to principal, in the following memorandum: In no event, as it seems to me, should more than 63 shares of the new $15 par value stock of Ohio Edison be allocated to income. I think that Matter of Fosdick ( 4 N Y 2d 646 ) should be reconsidered and overruled. If any portion is held to be a distribution of income, it should not exceed what would be indicated by the market value of the shares (see article by Dean Niles — 98 Trusts & Est. 924, 930).
Cases cited
- In re City Bank Farmers Trust Co. 4 N Y 2d 646 p. 854