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MATTER OF ERWIN

277 A.D. 378 (1950)

In the Matter of Commercial National Bank and Trust Company of New York, as Trustee under an Indenture made by Daniel P. Erwin, Respondent. Daniel P. Erwin, Appellant; Roma E. Jenkins et al., Respondents

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

October 24, 1950.

Attorney(s) appearing for the Case

Caesar L. Pitassy of counsel (William F. Koegel with him on the brief; Dwight, Harris, Koegel & Caskey, attorneys), for appellant.

Charles B. Lauren of counsel (Chadbourne, Wallace, Parke & Whiteside, attorneys), for petitioner-respondent.

Edward Garfield for Roma E. Jenkins, respondent.

Arthur J. X. Hines of counsel (Barr, Robbins & Palmer, attorneys), for Mary M. Erwin, respondent.

Edward J. Gould, guardian ad litem for Patricia Erwin, an infant, and unborn issue, if any, of Daniel P. Erwin, respondents.

DORE, J. P., CALLAHAN and SHIENTAG, JJ., concur; COHN, J., dissents and votes to affirm.

VAN VOORHIS, J.

This proceeding has been instituted by the Commercial National Bank and Trust Company of New York, for a construction of a trust indenture under which the settlor appellant Daniel P. Erwin and itself are cotrustees.

Appellant in 1930 created this trust consisting of securities then worth about $250,000, the income from which was directed to be paid to appellant (who is hereinafter described...

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