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[143 N.Y.S.2d 144] Edwin W. Cooney, New York City, of counsel (Pauline B. Taylor, New York City, with him on the brief; Mitchell, Capron, Marsh, Angulo & Cooney, New York City, attys.), for petitioner-appellant-respondent City Bank Farmers Trust Co.
Harrison F. Durand, New York City, of counsel (Charles L. Herterich, New York City, and Robert D. Taisey, New York City, with him on the brief; Davies, Hardy & Schenck, New York City, attys.), for respondent-appellant Nolf.
Philip C. Scott, New York City, of counsel (Leonard Joseph, New York City, with him on the brief; Dewey, Ballantine, Bushby, Palmer & Wood, New York City, attys.), for respondent Rutherford Trust Co.
Frederick W. P. Lorenzen, New York City, of counsel (Joanna H. Maxwell, New York City, with him on the brief; Dwight, Royall, Harris, Koegel & Caskey, New York City, attys.), for appellant Cooke.
Before PECK, P. J., and COHN, CALLAHAN, BREITEL, and RABIN, JJ.
BENJAMIN J. RABIN, Justice.
This proceeding arises out of dispositions made by and under the last will and testament of John W. Barrett ('John'). He died on February 1, 1934, a resident of New York, and appointed City Bank Farmers Trust Company, the petitioner here, and his wife Mabel as executors and testamentary trustees. Mabel died on May 23, 1942, and petitioner is here as the surviving executor of her estate as well as surviving executor and trustee of John's.
John, by his will, established a trust of two-fifths of his residuary estate for the life of his brother, Mitchell, with a testamentary power of appointment to the latter.
Mitchell died on January 25, 1938, a resident of New Jersey, and by his will disposed of his residuary estate, 'including therein the property formerly of my deceased brother,' by creating two trusts: the income of [143 N.Y.S.2d 145] three-fifths of his residuary estate to his wife Mary for her life and then to his son Wilson for his life, with a testamentary power of appointment to Wilson; the income of two-fifths of his residuary estate to Wilson for life and then to Mary for life is she survived Wilson, again with a testamentary power of appointment to Wilson. The Rutherford Trust Company, a New Jersey corporation, was a trustee,
and Carleton S. Cooke ('Cooke'), a New York resident, the executor and the other trustee named by Mitchell. By decree of the Surrogate's Court, New York County, dated December 23, 1938, distribution of the appointive property to Rutherford Trust Company and Cooke, pursuant to Mitchell's directions, was ordered. Neither the Rutherford Trust Company nor Cooke was required to, or did qualify as trustees in New York in connection with the distribution as aforesaid.
Mary and Wilson died on September 30, 1941 and July 15, 1952, respectively. By his will, Wilson bequeathed his residuary estate, including the appointive property, to one Lester J. Nolf ('Nolf'), ...