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Matter of Marine Midland Bank, N.A.

Court of Appeals of New York
547 N.E.2d 1152 (1989)


Carl Gustafon’s will created a trust for the benefit of his wife, Elsie, during her lifetime, with the remainder passing equally to his brothers, Roy and Leonard. If either brother predeceased Elsie, his share was to pass to that brother’s “surviving child or children,” and if the deceased brother died “without issue surviving,” then his share was to go to the surviving brother. Leonard predeceased Elsie. Leonard had two children, Jacqueline and Daniel. Daniel also predeceased Elsie. Daniel’s widow and children (plaintiffs) petitioned the court for Daniel’s share of the residual estate, arguing that the word “children” included Carl’s grandchildren and other collateral descendants. Jacqueline (defendant) argued that she was entitled to the full amount of Leonard’s share in the trust.

Rule of Law


Holding and Reasoning (Bellacosa, J.)

Dissent (Hancock, J.)

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